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47th  Congress,  )  HOUSE  OF  REPRESENTATIVES.    (  Mis.  Doc. 
Ist  Session.       f  (    No.  67. 


DIGEST  OF  ELECTION  CASES. 


OASES 


OF 


OOIslTESTED  ELECTIOISfS 


HOUSE  OF  REPRESENTATIVES, 

FOETY-FIFTH  AND  FOKTY-SIXTH  CONGRESSES, 


FROM 


1876  TO  1880,  INCLUSIVE. 


Compiled  by  J.  H.  ELLSWORTH,  Clerk  to  the  Committee  on  Elections, 
UNDER  Joint  Resolution  approved  August  8,  1882. 


WASHINGTON: 
GOVERNMENT   PRINTING  OFFICE, 

1883. 


Digitized  by  tine  Internet  Arciiive 

in  2007  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/digestelectioncaOOunitiala 


DIGEST  OF  ELECTION  CASES. 


FORTY-FIFTH  CONGRESS,  SECOND  AND  THIRD  SESSIONS.. 


PETER  D.  WIGGINTON  vs.  ROMUAIiDO  PACHECO. 

Fourth  Congressional  District  of  California. 

Held,  That  the  board  of  supervisors,  provided  for  under  sections  429,  430,  and  446  ol ' 
the  statutes  of  California,  is  an  official  body  having  a  jurisdiction  defined  by  law, 
required  to  keep  a  record,  which  is  to  be  signed  by  its  chairman  and  clerk,  and 
this  record,  duly  certified  to  the  secretary  of  state,  must  stand. 

Ex  parte  affidavits  cannot  be  considered  as  evidence  in  these  cases. 

The  votes  of  persons  whose  names  are  not  on  the  "Great  Register"  of  voters  (Cali- 
fornia) must  be  rejected. 

Ballots  upon  which  the  judges  of  election  had  written  the  names  of  the  voters  and 
the  words  "challenged,  «fec.,"  must  not  be  rejected.  If  the  voter  had  placed  this 
indorsement  upon  the  ballot,  or  any  other  words  by  which  it  could  be  distin- 
guished, they  should  be  rejected. 

When  a  ballot  clearly  designates  the  office  to  be  filled,  and  the  name  of  the  person 
voted  for,  the  voter  is  never  permitted  to  contradict  his  ballot  by  evidence  that 
he  intended  to  vote  for  a  different  person,  or  for  the  same  person  fer  a  different 
office. 

The  House  adopted  the  majority  report  February  7, 1878. 
Peter  D.  Wigginton  sworn  in. 


January  31, 1878. — Mr.  John  T.  Harris,  from  the  Committee  of  Elec- 
tions, submitted  the  following 

*  REPORT: 

The  Committee  of  Elections,  to  tchom  were  referred  the  papers  relating  to 
the  contested-election  case  in  the  fourth  Congressional  district  of  Cali- 
fornia, having  had  the  same  under  consideration,  submit  the  following 
report : 

The  contestant,  Peter  D.  Wigginton,  claims  the  seat  now  occupied  by 
Romualdo  Pacheco  upon  the  grounds  following : 

1.  That  iu  the  county  of  Monterey,  in  the  State  of  California,  being 
one  of  the  counties  composing  the  fourth  Congressional  district,  the  board 
of  county  canvassers,  being  the  board  of  supervisors  of  said  county,  met 
at  the  proper  time  and  place  and  canvassed  the  votes  cast  for  Repre- 
sentative in  Congress ;  and  that  said  board  found,  and  declared  as  the 
true  result  of  the  vote,  that  Peter  D.  Wigginton  received  988  votes  and 

5 


6  DIGEST  OF  ELECTION  CASES. 

Eomualdo  Pacheco  received  1,208  votes  for  Representative  in  Congress 
in  said  county.  That  after  the  adjournment  sine  die  of  said  board,  the 
clerk  thereof,  who  was  not  one  of  the  members  of  the  board,  altered  and 
changed  the  vote  of  said  county,  so  as  to  make  it  appear  that  Mr.  Wig- 
ginton  received  only  986  votes  in  said  county.  That  this  false  and  ille- 
gal return  was  by  said  clerk  certified  to  the  secretary  of  state  as  the 
true  result  of  the  votes  cast  in  said  county  for  Kepresentative  in  Con- 
gress. That  the  returns  of  the  voles  cast  in  all  the  counties  of  the 
fourth  Congressional  district  of  said  State,  as  certified  to  the  secretary 
of  state,  includiug  the  false  and  illegal  return  from  Monterey  County, 
showed  the  following  result : 

Votes. 

For  Roiniialdo  Pacheco 19, 104 

For  Peter  D.  Wigginton 19,103 

Majority  for  Pacheco I 

'That  by  the  illegal  and  fraudulent  change  made  by  the  clerk  of  Monte- 
rey County,  whereby  two  votes  were  taken  from  the  number  received 
by  Mr.  Wigginton,  the  result  in  said  Congressional  district  was  changed, 
and  the  sitting  member  was  counted  in  by  one  majority,  whereas  the 
contestant  should  have  been  declared  elected  by  the  same  majority. 

2.  That  thirteen  x^ersons  voted  for  Mr.  Pacheco,  in  certain  precincts 
and  counties  of  the  district,  who  were  non-residents,  and  not  entitled 
to  vote  under  the  laws  of  the  State  of  California. 

3.  That  three  persons  voted  for  Mr.  Pacheco  whose  names  were  not 
on  the  great  register,  as  required  by  the  laws  of  that  State. 

4.  That  six  persons  voted  for  Mr.  Pacheco  whose  ballots  were  so  marked 
as  to  indicate  who  cast  them,  and  that  such  ballots  must  be  i ejected 
under  the  laws  of  California. 

5.  That  in  two  precincts  there  were  more  votes  counted  than  there 
were  names  on  the  poll-list  j  that  the  judges  in  each  of  these  failed  to 
draw  out  the  excess  of  votes  and  destroy  them.  That,  by  this  failure 
on  the  part  of  the  inspectors,  two  votes  were  counted  for  Mr.  Pacheco 
that  ought  not  to  have  been  counted. 

6.  That  there  were  such  irregularities  and  illegal  practices  on  the  part 
of  the  inspectors  of  election  and  the  voters  of  Saticoy  precinct,  in  Ventura 
County,  as  to  invalidate  the  whole  vote  of  the  precinct.  In  this  precinct 
the  vote  stood — 

-For  Komualdo  Pacheco 85 

For  Peter  D.  Wigginton 51 

If  the  contestant  should  make  good  the  foregoing  grounds  of  contest, 
he  would  add  to  his  own  vote  two  votes  in  the  county  of  Monterey,  and 
subtract  from  Mr.  Pacheco's  vote  fifty-eight  votes;  and  the  result  would 
then  be  as  follows : 

For  Mr.  Wigginton 19,105 

For  Mr.  Pacheco 19,046 

Majority  for  Mr.  Wigginton 59 

A  careful  examination  has  been  made  of  each  of  the  grounds  of  con- 
test above  set  forth,  with  the  result  following : 

MONTEREY   COUNTY. 

In  Monterey  County,  according  to  the  returns  first  sent  to  the  secre- 
tary of  state,  the  vote  was : 

For  Pacheco •..       1,208 

For  Wigginton 98t» 


WIGGINTON   VS.    PACHECO.  7 

Bat  contestant  claims  that  those  returns  should  have  shown  that  he 
received  988,  which  would  have  given  him  a  majority  of  one  in  the  dis- 
trict. Being  constrained  to  differ  with  the  contestant  as  to  this,  the 
following  considerations  are  presentetl : 

1st.  By  the  laws  of  California  it  is  provided  that  after  the  officers  of 
the  election  shall  have  counted  the  ballots,  of  which  tally-lists  are  to  be 
kept,  lists  must  be  attached  to  the  tally-lists,  containing  the  names  of 
tiie  persons  voted  for,  and  the  number  of  votes  given  for  each  candi- 
date, the  number  being  written  at  full  length,  must  be  signed  by  the 
members  of  the  board,  and  attested  by  the  clerks. 

These  tally-lists,  with  the  list  of  persons  voted  for,  with  the  number 
of  votes  received  by  each,  together  with  the  ballots,  &c.,  are  required 
to  be  sent  to  the  clerk  of  the  county  at  the  county  seat. 

These  returns  are  required  to  be  canvassed  by  the  board  of  super- 
visors of  the  county.  This  board  of  supervisors  is  not  a  board  simply 
created  for  the  purpose  of  canvassing  the  returns  of  an  election,  and 
which  ceases  to  exist  upon  that  duty  being  discharged;  but  it  is  an 
official  body  of  a  continuing  character,  required  to  keep  a  record  of  its 
proceedings,  holding  sessions  day  after  day — on  one  day  signing  and 
attesting  the  proceedings  of  the  day  next  preceding,  &c.  Its  char- 
acter is  sufficiently  shown  in  the  opiuion  of  Mr.  Justice  Rhodes,  at  the 
beginning  of  that  opinion,  on  page  34,  part  first,  of  the  record.  As  to 
this  there  cau  be  no  doubt,  and  it  is  an  important  fact  to  be  noted. 

The  duties  of  this  board  touching  the  matter  of  elections  are  thus 
defined  by  the  statute  : 

Sec.  4046.  Subdivision  3.  To  establish,  abolish,  and  change  election-precincts,  and 
to  appoint  inspectors  and  judges  of  elections,  canvass  all  election-returns,  declare  the 
result,  and  issue  eertilicat«s  thereof. 

Sec.  4030.  Subdivision  1.  The  clerk  of  the  board  must  record  all  the  proceedings  of 
the  board. 

Sec.  4029.  The  clerk  of  the  county  is  ex-officio  clerk  of  the  board  of  supervisors. 
The  records  must  be  signed  by  the  chairman  and  the  clerk.  The  clerkmust  be  paid 
soch  compensation  as  is  provided  by  law  in  full  for  all  services  as  clerk  of  the  board. 

This  board  having  this  jurisdiction,  the  statute  further  provides  as  to 
the  manner  of  cauAassing  the  returns  in  the  following  sections : 

Sec.  1281.  The  canvass  must  be  made  in  public,  and  by  opening  the  returns  and 
estimating  the  vote  of  such  county  or  township  for  each  person  voted  for,  and  for  and 
si;ainst  each  proposition  voted  upon  at  such  election,  and  declare  the  result  thereof. 

Sec.  1282.  The  clerk  of  the  board  must,  as  soon  as  the  result  is  declared,  enter  on 
the  records  of  such  board  a  statement  of  such  result,  which  statement  must  show — 

1.  The  whole  number  of  votes  cast  in  the  county. 

2.  The  names  of  the  persons  voted  for  and  the  proposition  voted  npon. 

3.  The  oflBce  to  till  which  each  person  was  voted  for. 

4.  The  number  of  votes  given  at  each  precinct  to  each  of  such  persons,  and  for  and 
against  each  of  such  propositions. 

5.  The  number  of  votes  given  in  the  county  to  each  of  snch  persons,  and  for  and 
against  each  of  such  jiropositions. 

Here,  then,  we  have  an  official  board,  having  a  jurisdiction  defined 
by  law,  required  to  keep  a  record^  which  is  to  be  signed  by  its  chairman 
and  the  clerk. 

The  supreme  court  of  California,  in  the  litigation  over  this  very  case, 
said  of  this  record  thus  made  (see  page  34  of  the  record  in  this  case) : 

A  record  kept  and  authenticated  in  the  manner  provided  by  those  two  sections  (4030, 
4029)  is  the  evidence  of  the  proceedings  of  the  board,  and  is  the  only  evidence  thereof  in 
ctises  where  the  proceedings  are  required  to  be  entered  o/re^Mrd. 

Then  the  statute  further  provides  that  this  record  shall  be  certified 
to  the  secretary  of  state,  as  will  appear  by  the  following  sections  : 

Sec.  1344.  The  clerk  of  each  county,  as  soon  as  the  statement  of  the  vote  of  his 
county  at  such  election  is  made  out  and  entered  on  the  records  of  the  board  of  super 


8  DIGEST    OF    ELECTION    GASES. 

Tisors,  must  make  a  certified  abstract  of  so  miich  thereof  a*  relates  to  the  vote  given 
for  persons  for  Representative  to  Congress. 

Sec.  1345.  The  clerk  must  seal  up  such  abstract,  indorse  it  "  Congressional  Election 
Returns,''  and,  ■without  delay,  transmit  it  by  mail  to  the  secretary  of  stat-e. 

And  from  the  certified  copies  or  abstracts  of  these  records  from  the 
various  counties  the  secretary  of  state  makes  his  certificate  to  the  gov- 
ernor, showing  the  person  having  the  highest  number  of  votes  in  the 
district. 

From  this  it  will  be  seen  that  the  several  counties  have  records  of  the 
votes  cast  in  them  respectively,  and  that  in  the  ofiBce  of  the  secretary 
of  state  is  a  record  of  the  votes  cast  in  all  the  counties.  From  the 
record  thus  made  and  kept  in  the  office  of  the  secretary  of  state  the 
certificate  was  sent  to  the  governor,  showing  that  coutestee  had  a  ma- 
jority of  the  votes  cast  in  the  district,  and  on  which  the  governor  issued 
to  him  his  certificate  of  election. 

Now,  the  claim  of  the  contestant  in  this  case  is  that,  as  to  Monterey 
County,  he  should  be  allowed  988  votes ;  whereas  the  record  of  that 
county,  as  transmitted  by  the  clerk  to  the  secretary  of  state,  only  shows 
him  to  have  received  986. 

It  is  not  disputed  that  the  record  thus  transmitted  shows  that  the 
contestant  received  only  986.  He  seeks  to  impeach  that  record.  It 
certainly  imports  verity.  We  do  not  contend  that  the  committee  or  the 
House  cannot  go  behind  it  and  ascertain  the  real  facts ;  but  we  do  con- 
tend that  it  must  be  presumed  to  be  correct  until  the  contrary  is  proven  j 
and  it  is  incumbent  on  the  contestant  to  prove  that  it  is  not  correct. 

The  only  proof  he  has  offered  consists  of  exparte  affidavits,  which 
cannot  be  used  or  considered  for  such  a  purpose.  The  affidavits  of 
Blankenship  and  Gordon  may  therefore  be  dismissed  from  considera- 
tion. 

But  it  appears  in  the  record  that  the  contestee  instituted  a  proceed- 
ing in  mandamus  against  the  secretary  of  state  to  compel  him  to  certify 
the  vote  according  to  the  records  of  his  office,  created  as  above  shown 
to  be  required  by  law,  and  on  his  petition  in  that  case  the  coutestee 
Bet  forth  an  affidavit  made  by  the  clerk  of  Monterey  County  touching 
the  facts  as  to  the  canvassing  the  returns  of  that  county,  and  it  is 
claimed  by  the  contestant  that  the  contestee  having  set  forth  that  affi- 
davit in  his  petition,  which  was  sworn  to  by  him,  it  may  be  considered 
as  evidence  against  contestee  to  impeach  this  record.  Without  con- 
ceding this  to  be  sound  as  a  legal  proposition,  and  for  the  purpose  of 
the  argument  conceding  that  this  affidavit  may  be  used  as  evidence,  it 
certainly  will  not  be  denied  that  the  whole  of  it  is  to  be  taken ;  and  that 
being  the  case,  it  completely  disposes  of  this  controversy  as  to  Monterey 
County.  As  this  affidavit  is  made  to  play  so  important  a  part  in  this 
case,  it  is  proper  to  quote  it  in  full.    It  is  as  follows : 

I,  John  Markley,  county  clerk  of  Monterey  County,  and  ex  officio  clerk  of  the  board 
of  supervisors  of  said  county,  do  hereby  certify  as  follows,  to  wit :  That  on  the  I'Jth 
day  of  November,  1876,  the  board  of  supervisors  of  said  county  met  at  their  usual 
place  of  meeting,  in  the  office  of  the  county  clerk  of  said  couuty,  to  canvass  the  vote 
polled  in  said  county  ou  the  7th  day  of  November,  A.  D.  1876;  that  there  were  pres- 
ent at  said  meeting  Supervisors  Edwin  St.  John,  S.  B.  Gordon,  and  A.  J.  Blanken- 
fihip.  The  board  organized  by  electing  Mr.  Blankenship  chairman  pro  tern,  of  said 
meeting.  The  board  proceeded -to  canvass  the  vote,  Mr.  Blankenship  opening  the 
large  envelopes  containing  a  copy  of  the  great  register,  poll-list,  and  tally-list,  and 
handing  to  Mr.  Gordon  the  tally-list. 

Mr,  Gordon  read  out  the  vote  received  by  each  person,  and  as  said  vote  was  read 
out  by  Mr.  Gordon  the  clerk  or  his  deputy  took  down  the  same  with  a  lead-pencil  in  a 
tabulated  statement  prepared  for  that  purpose.  At  the  same  time  John  B.  Scott, 
county  auditor,  and  L.  P.  Carter  kept  an  account  of  so  much  of  said  vote  as  related  to 
members  of  Congress,  as  the  same  was  read  out  by  Hr.  Gordon. 


WIGGINTON    VS.    PACHECO.  » 

After  the  board  had  opened  all  the  envelopes,  and  counted  all  the  votes  as  per  the 
tally-list  therein  contained,  they  directed  the  clerk  to  foot  up  the  vote  as  the  same  ap- 
peared on  the  tabulated  statement  kept  by  said  clerk.  After  footing  the  same  and  as- 
certaining the  result  of  the  vote  on  county  officers,  after  passing  an  order  declariug 
the  county  officers  receiving  the  highest  number  of  votes  for  the  offices  which  they  had 
been  voted  duly  elected,  directing  the  clerk  to  issue  the  proper  certificates  to  them, 
the  board  adjourned  sine  die.  At  the  time  the  board  adjourned,  as  aforesaid,  the  vote 
stood,  on  the  tabulated  statement  kept  by  the  said  clerk,  at  San  Lorenzo  precinct,  P. 
D.  Wigginton,  59  ;  and  for  the  said  P.  D.'  Wigginton  in  the  county,  988.  That  about 
one  hour  after  the  adjournment  of  said  board,  and  before  the  pencil-minutes  and  tab- 
ulated statement  kept  by  the  clerk  had  been  transcribed  to  the  minutes  of  said  board, 
Mr.  St.  John,  a  member  of  said  board,  returned  to  the  office  and  stated  to  me  that  he 
thought  a  mistake  had  been  made  in  the  vote  for  Congressman ;  that  Mr.  Scott  and  Mr. 
Carter  only  had  986  votes  for  Mr.  Wigginton.  We  looked  over  the  figures  which  I  had 
made  and  found  that  they  had  been  added  correctly.  I  then  gave  to  Mr.  St.  John  a 
copy  of  my  figures  of  the  vote  for  Congressman,  and  suggested  to  him  that  he  compare 
the  same  with  the  figures  of  the  vote  as  the  same  had  been  kept  by  Mr.  Scott,  and 
said  that  he  would  in  that  way  find  out  where  or  in  which  precinct  the  diflference  was, 
and  if  there  was  a  mistake,  we  would  correct  it  in  the  morning. 

After  supper  that  night  I  wrote  up  the  minutes  and  transcribed  the  statement 
made  in  pencil  to  the'minute-book.  On  the  morning  of  November  14,  Mr.  J.  W.  Leigh 
and  myself  were  in  the  clerk's  office.  Mr.  St.  John  came  in  and  stated  to  me  that  the 
difi'erence  in  the  figures  was  in  San  Lorenzo  precinct.  I  got  the  tally-list  from  San 
Lorenzo  precinct,  and  Mr.  St.  John,  Mr.  Leigh,  and  myself  examined  the  same.  We 
found  that  Mr.  Wigginton  had  only  received  27  votes,  whereas  the  tabulated  statement 
and  the  minutes,  as  they  stood  then,  had  allotted  to  Mr.  Wigginton  29  votes  in  said 
precinct.  The  tally-list  was  in  all  respects  regular.  The  27  was  in  marks  in  figure* 
twice  and  written  twice. 

We  all  three  felt  fully  convinced  that  Mr.  Wigginton  had  received  in  the  precinct 
only  27  votes,  and  the  clerk  had  made  a  mistake  in  putting  down  29.  I  then  and 
there  changed  the  vote,  as  entered  on  the  minutes,  from  29  to  27,  and  the  total  vote 
from  i»88  to  986,  and  thereafter,  and  on  the  same  day,  the  chairman  of  said  board 
signed  the  minutes. 

That  on  or  about  the  15th  day  of  November,  1876,  I  made  an  abstract  of  statement 
of  so  much  of  said  vote  as  related  to  persons  voted  for  Representatives  to  Congress, 
and  duly  certified  the  same  to  the  secretary  of  state  of  California;  that  said  state- 
ment so  certified  as  aforesaid,  only  gave  Mr.  Wigginton  27  votes  in  said  San  Lorenzo  pre- 
cinct, and  only  gave  him  986  in  the  county  ;  that  the  minutes  of  said  board,  in  rela- 
tion to  said  vote,  have  not  been  changed  since  the  same  were  signed  by  the  chairman 
as  aforesaid;  that  said  minutes  had  not  been  changed  since  I  made  and  forwarded  the 
abstract  as  aforesaid ;  that  the  minutes  of  said  board  now  show  27  votes  in  San  Lo- 
renzo precinct  and  986  votes  in  the  county  for  Mr.  Wigginton,  and  that  said  abstract 
of  statement,  so  forwarded  as  aforesaid,  contains  a  full,  true,  and  correct  statement  of 
the  vote  for  Representative  of  Congress,  as  the  same  appears  entered  in  the  records  of 
said  board  of  supervisors  at  the  present  time. 

[seal.]  !  JOHN  MARKLEY, 

County  Clerk. 

From  this  it  will  be  seen  that  the  two  votes  in  question  occurred  in 
putting  down  the  vote  of  San  Lorenzo  precinct;  that  in  making  a  pen- 
cil-memorandum, to  be  transcribed  to  the  record,  the  clerk  put  down  for 
contestant  29  votes,  and  afterward  changed  it  to  27  votes  in  the  man- 
ner described  in  the  affidavit,  and  for  the  reasons  therein  set  forth. 

It  must  be  borne  in  mind  that  the  contestant  nowhere  attempts  to 
prove,  in  the  manner  pointed  out  by  the  statute  in  reference  to  con- 
tested elections,  that  he  received  twenty-nine  votes  in  San  Lorenzo  pre- 
cinct. He  relies  upon  the  evidence  disclosed  in  the  mandamus  pro- 
ceedings in  the  supreme  and  district  courts  of  California  to  prove  that 
the  count  made  by  the  board  of  supervisors  showed  that  he  received 
twenty-nine  votes  in  that  precinct.  The  jyesident  of  the  board  and  the 
clerk  having  signed  a  record  showing  only  986  votes  in  Monterey 
County  for  contestant,  and  this  record  having  been  duly  certified  to  the 
secretary  of  state,  and  the  supreme  court  of  California  having  decided, 
after  a  careful  examination  of  all  the  facts  as  they  appeared  in  con- 
testee's  petition  and  contestant's  answer,  that  the  record  thus  certified 


10  DIGEST    OF    ELECTION    CASES. 

to  the  secretary  of  state  must  stand,  imder  the  laws  of  California,  until 
set  aside  or  shown  to  be  erroneous  by  a  contest,  under  the  statute  in 
such  cases  made  and  provided,  your  committee  are  of  the  opinion  that 
the  truth  or  falsity  of  the  clerk's  return  is  not  put  in  issue  in  this  con- 
test, and  that  the  record  thus  certified  by  the  clerk  in  the  manner  re- 
quired by  the  law  of  California  must  stand.  If  contestant  had  felt  him- 
self injured  by  that  record,  it  was  his  duty  and  privilege  to  show  its 
falsity  in  the  manner  pointed  out  in  the  statute. 

NON-RESIDENT   VOTERS. 

2.  Your  committee  have  carefully  examined  the  evidence  relating  to 
the  non-residence  of  the  thirteen  persons  who  are  alleged  by  the  con- 
testant to  have  vot^d  for  Mr.  Pacheco.    The  cases  are  as  follows  : 

F.  W.  Hoffman  resided  at  Pear-Tree  Eanch,in  San  Diego  County,  forty- 
eight  miles  from  the  city  of  San  Diego,  in  December,  1874,  when  he  left  the 
State  and  went  to  Arizona  and  Nevada,  and  while  absent  was  engaged 
in  mining  and  prospecting.  He  says  in  his  evidence  that  he  left  there 
(Pear-Tree  Ranch)  with  the  intention  of  returning  there,  because  he 
thought  he  owned  property  there.  He  returned  to  San  Diego  County 
twelve  days  before  the  election,  and  was  in  San  Diego  City,  where  he 
voted,  only  four  days  before  the  election.  He  had  been  in  San  Diego 
before  he  left  the  State,  but  had  no  residence  there,  and  did  not  go  there 
to  remain.  If  he  had  returned  to  Pear-Tree  Eanch  he  might  have  voted 
there  unless  he  was  disqualified  by  section  1239,  paragraph  7,  of  the 
Statutes  of  California.  It  is  clear,  however,  that  he  never  had  a  legal 
residence  in  the  city  of  San  Diego,  where  he  voted.  He  voted  for  Mr. 
Pacheco.    His  vote  must  be  rejected.     (Eecoi-d,  pp.  4,  7,  8,  22.) 

Thomas  B.  Landhardt  voted  in  the  city  of  San  Diego ;  came  from  Los 
Angeles  to  San  Diego  October  14,  i)rior  to  the  election ;  had  been  in 
the  county  only  twenty-two  or  twenty-three  days  before  the  election.  His 
vote  was  challenged,  and  the  inspectors  wrote  on  the  back  of  his  ticket 
his  name  and  the  words,"  Challenged  because  not  in  the  precinct  thirty 
days;  challenge  disallowed," and  signed  their  own  names  to  this  state- 
ment. The  county  clerk  produced  the  box  containing  the  ballots  and 
identified  this  ballot.  It  contained  the  name  of  Romualdo  Pacheco  for 
Representative  in  Congress.  The  vote  must  be  rejected,  as  the  law  of 
California  requires  thirty  days'  residence  in  the  precinct  to  entitle  a 
person  to  vote.     (Record,  pp.  12,  13,  14,  17.) 

Charles  Gilbert  resided  for  thirty  days  immediately  preceding  the 
election  at  Alvah  Mitchell's  house.  He  voted  at  Poway  precinct,  San 
Diego  County.  Alvah  Mitchell  was  not  allowed  to  vote  in  the  precinct 
because  he  did  not  live  in  it ;  and  one  witness  testified  that  he  knew  the 
line  dividing  the  precinct,  for  he  saw  it  surveyed,  and  that  Mitchell's 
house  was  not  in  the  precinct.  There  can  scarcely  be  any  doubt  as  to 
how  he  voted.     (Record,  pp.  28,  29,  23.) 

Frederick  Reetzke  testified  that  he  (Reetzke)  voted  for  Mr.  Pacheco, 
and  that — 

Gilbert  always  told  me  he  was  a  Republican ;  he  asked  me  which  were  the  Republi- 
can tickets ;  he  t»ok  one,  folded  it  up,  and,  to  my  honest  belief,  put  it  in.  »  •  •  I 
only  showed  him  the  Republican ^cket,  with  Pacheco's  name  on  it;  he  took  it,  folded 
it  up,  and,  to  my  honest  belief,  voted  it.     (Record,  p.  28.) 

In  the  absence  of  the  votei-'s  own  evidence,  it  would  be  difficult  to 
prove  more  certainly  than  is  <lone  in  this  case  for  whom  a  person  voted. 
A  person  cannot  be  compelled  to  state  for  whom  he  voted  ;  and  the  Su- 
preme Court  of  the  United  States  has  expressly  decided  that  where  a 


WIGGINTON    VS.    PACHECO.  11 

witness  cannot  be  compelled  to  answer  he  need  not  be  called.  (6  Peter's 
Eepts.,  352,367.)  But  Mr.  Pacheco  might  have  called  the  voter,  and  if 
he  had  not  claimed  his  privilege,  he  could  have  made  it  clear  for  whom 
he  did  vote.  Mr.  Pacheco  not  having  done  so,  nor  having  shown  his 
inability  to  procure  his  deposition,  we  may  infer  that  Gilbert,  if  pro- 
duced, Avould  have  corroborated  the  witness  whose  deposition  is  in  the 
record.  Gilbert  did  not  reside  in  the  precinct  where  he  voted,  and  his 
vote  must  be  rejected. 

Charles  Waterman  voted  at  Mayfield,  Santa  Clara  County.  He  was 
a  single  man.  He  lived  in  Maytield  four  or  five  years.  Six  or  eight 
months  before  the  election  he  sold  his  interest  in  the  hotel  business ; 
said  "the  people  of  Mayfield  might  go  to  thunder;  he  wanted  nothing 
more  to  do  with  them,  and  left"  there.  He  said  "he  left  this  town  for 
good. ''  He  took  employment  in  a  circus,  and  traveled  from  place  to 
place  in  California  and  Oregon.  He  returned  to  Mayfield  on  the  morn- 
ing of  the  election.  His  vote  was  challenged.  He  swore  it  in,  and  left 
the  town  on  the  same  day.  It  is  conclusively  shown  that  he  voted  for 
Mr.  Pacheco.  The  law  of  California  says  "  that  place  must  be  consid- 
ered and  held  to  be  the  residence  of  a  person  in  which  his  habitation 
is  fixed,  and  to  which,  whenever  he  is  absent,  he  has  the  intention  of 
returning. "  Waterman  having  left  Mayfield  "  for  good, "  as  he  declared 
when  he  took  his  departure,  if  he  should  afterward  conclude  to  return, 
he  must  acquire  his  residence  again  the  same  as  if  he  had  never  resided 
in  the  place.  Under  the  law  of  California,  and  by  his  own  declaration, 
he  was  not  a  resident  of  the  precinct  in  which  he  voted.  His  vote  must 
be  rejected.     (Record,  pp.  33,  34,  40,  47.) 

Contestant  submitted  evidence  tending  to  prove  that  William  Pratt,  or 
G.  C.  Pratt,  as  some  of  the  witnesses  call  him,  was  a  non-resident  of  the 
precinct  where  he  voted,  and  that  he  voted  for  the  sitting  member. 
The  testimony  in  reference  to  this  voter  will  be  found  in  the  record, 
pages  33,  36,  40,  and  42,  but  we  do  not  think  it  suflicient  to  establish 
the  fact  of  non-residence.     (Record,  pp.  34,  36,  40,  42.) 

Moses  Atkinson  voted  at  Mayfield,  in  Santa  Clara  County.  He  rented 
a  ranch  two  miles  from  Mayfield,  across  the  creek,  in  San  Mateo  County. 
One  witness,  Decker,  testified  (Record,  p.  52)  that  Atkinson  told  him 
the  night  of  the  election  that  he  lived  on  the  ranch,  but  he  claimed  his 
residence  in  Mayfield,  because  he  slept  more  in  Mayfield  than  on  the 
ranch.  He  was  a  single  man,  and  his  brother  also  lived  on  the  ranch. 
When  in  Mayfield  he  slept  at  the  hotel;  he  kept  his  horses  on  the  ranch. 
Another  witness,  Jenkins,  testified  that  Atkinson  was  a  resident  of  San 
Mateo  County  for  the  last  one  or  two  years  before  the  election ;  that  he 
rented  land  and  lived  there;  that  he  voted  the  whole  Republican  ticket, 
and  that  he  always  said  so.  It  is  clear  from  the  evidence  that  Atkinson 
lived  at  the  ranch  in  San  Mateo  County  at  the  time  of  the  election.  The 
fact  that  he  slept  more  at  Mayfield,  where  he  voted,  than  at  the  ranch, 
does  not  afiect  the  question  of  residence.  The  law  of  California  pro- 
vides that  (section  1239,  i)aragraph  5)  "A  person  must  not  be  considered 
to  have  gained  a  residence  in  any  precinct  into  which  he  comes  for  tem- 
porary purposes  merely,  without  the  intention  of  making  such  precinct 
bis  home."  This  provision  of  law  fixes  Atkinson's  residence  in  San 
Mateo  County.  His  ignorance  of  the  law  cannot  legalize  his  vote  in 
Santa  Clara  County  where  he  voted.     His  vote  must  be  rejected. 

Joseph  Dickerson  voted  at  Mayfield.  Evidence  was  taken  tending  to 
show  that  he  was  a  non-resident  and  that  he  voted  for  Mr.  Pacheco. 
But  neither  fact  is  conclusively  proven.    (Record,  p.  34.) 

William  M.  Beekman  voted  in  Saticoy  precinct,  Ventura  County.    He 


12  DIGEST    OF   ELECTION    CASES. 

was  probably  a  non-resident,  -but  it  does  not  satisfactorOy  appear  for 
whom  he  voted.     (Record,  pp.  50,  52,  57,  59.) 

F.  C.  Kelley  was  telegraph- operator  in  the  Signal  Service,  United 
States  Army,  at  Carapo,  San  Diego  County.  He  enlisted  in  the  Signal 
Service  Corps  in  Cincinnati,  Ohio ;  came  to  California  in  that  service, 
and  continued  in  charge  of  the  station  at  Campo  from  March,  1875,  un- 
til the  day  of  the  taking  of  his  deposition — July  19,  1877.  Was  mar- 
ried, and  his  family  were  with  him  at  Campo.  He  had  never  been  in 
.California  until  he  went  there  in  the  United  States  service.  The  fol- 
lowing questions  and  answers  relate  to  his  evidence : 

Q.  Where  did  you  reside  on  the  7th  day  of  November,  1876? — A.  At  a  place  called 
Campo,  in  San  Diego  Connty,  California. 

Q.  How  long  had  you  resided  there  ?— A.  A  year,  eight  months,  and  three  days  prior 
to  the  election.     I  came  there  the  4th  of  March,  1875.     (^Kecord,  pp.  24,  25.) 

This  is  the  testimony  of  the  voter,  and  may  be  regarded  as  his  under- 
standing of  the  law  of  his  residence.  But  his  judgment  upon  a  ques- 
tion of  this  kind  cannot  control  the  decisions  of  courts  or  of  this  House. 
The  law  of  the  State  of  California,  which  must  control  in  this  case,  is 
as  follows: 

A  person  must  not  be  held  to  have  gained  or  lost  residence  by  reason  of  his  presence 
or  absence  from  a  place  while  employed  in  the  service  of  the  United  States  or  of  thi» 
State,  nor  while  engaged  in  navigation,  nor  while  a  student  at  any  institution  of  learn- 
ing, nor  while  kept  in  an  almshouse,  asylum,  or  prison.     (Section  1239,  paragraph  2.) 

Aside  from  the  statutory  provision,  the  well-recognized  rule  of  law 
governing  in  cases  of  this  kind  is  this :  that  the  fact  that  an  elector  is 
in  the  Army  does  not  disqualify  him  from  voting  at  his  place  of  resi- 
dence ;  hut  he  cannot  acquire  a  residence  so  as  to  qualify  him  as  a  voter  by 
being  stationed  at  a  particular  place  while  in  the  service  of  the  United  States 
(People  vs.  Riley,  15  Cal.,  48;  Hunt  vs.  Richards,  4  Kans.,  549;  Biddle 
vs.  Wing,  Clark  &  Hall,  504 ;  McCrary,  sec.  41.) 

The  person  in  question  having  gone  to  California  in  the  military  serv- 
ice of  the  United  States,  his  legal  residence  remained  at  the  place  of 
enlistment,  and  he  could  not  acquire  a  residence  in  California  while  in 
that  service.  His  vote  must  be  rejected.  He  testified  that  he  voted 
for  Mr.  Pacheco,  and  upon  this  point  there  is  no  dispute. 

James  Quails  voted  at  Saticoy  precinct,  Ventura  County.  Was  in 
the  precinct  only  ten  days  prior  to  the  election.  He  had  no  fixed  hab- 
itation. His  occupation  was  a  cattle-herder.  He  worked  for  Mr.  Ran- 
dolph, on  the  Sespe,  from  about  the  23d  of  July,  1876,  probably  up  to 
the  time  he  came  to  Saticoy;  but  he  was  not  in  Saticoy  thirty  days  pre- 
vious to  the  election.  He  said  his  residence  was  on  the  Sespe  on  the 
7tb  day  of  November,  the  day  of  the  election.  He  was  in  Mr.  Ran- 
dolph's employ  in  December  after  the  election.  The  Sespe  was  not  in 
Saticoy  precinct.  He  said  he  voted  the  Republican  ticket,  and  it  was 
proved  that  Mr.  Pacheco's  name  was  on  that  ticket.  His  vote  must  be 
rejected  on  the  ground  that  he  was  a  non-resident  of  the  precinct. 
(Record,  pp.  51,  53-55,  56,  63,  77,  and  78.) 

Pedro  Parris  voted  in  Ventura  precinct,  Ventura  County.  On  the 
9th  day  of  June,  1876,  he  was  a  resident  of  Ojai  or  Caiiada  precinct,  in 
that  county.  Was  there  arrested,  charged  with  grand  larceny,  and  on 
the  14th  day  of  June  was  committed  to  the  county  jail,  in  default  of 
bail,  to  await  the  action  of  the  grand  jury.  The  jail  was  in  Ventura 
precinct,  where  he  voted.  After  he  was  committed  to  jail  his  family 
moved  into  Ventura  precinct.  He  was  released  from  jail  within  fifteen 
days  prior  to  the  election.  His  vote  was  challenged  but  sworn  in.  It 
is  clear  that  he  voted  for  Mr.  Pacheco.    The  same  rule  as  to  residence 


WIGGINTON    VS.    PACHECO.  13 

must  be  applied  to  this  person  as  was  applied  to  Mr.  Kelley  already 
referred  to.  He  could  not  acquire  a  residence  in  Ventura  precinct  while 
in  prison.  His  vote  must  be  rejected.  (Record,  pp.  G5,  67,  68,  70,  74, 
75,  and  84.) 

Juan  Parris  voted  in  Ventura  precinct,  Ventura  County.  Came  to 
Ventura  about  twelve  days  before  the  election  to  get  his  brother  Pedro 
out  of  prison.  He  lived  in  OJai  or  Nordhoil"  precinct  prior  to  that  time. 
His  vote  was  twice  challenged.  The  lirst  time  he  refused  to  take  the 
oath.  Afterward  he  came  back  to  the  polls;  was  again  challenged, 
and  took  the  oath  and  voted.  The  evidence  is  conclusive  that  he  did 
not  reside  in  the  precinct  where  he  voted,  and  his  vote  must  be  rejected. 
He  voted  for  Mr.  Pacheco.     (Kecord,  pp.  68,  70,  74,  75,  and  84.) 

J.  A.  Scott  voted  at  Ventura  precinct,  Ventura  County.  By  his'own 
evidence  he  was  not  a  legal  voter.  Prior  to  September  14,  1876,  he 
lived  with  his  family  at  Lyons  Station,  Los  Angeles  County.  He  there 
formed  an  intention  to  remove  to  Ventura  precinct,  and  went  there  to 
secure  a  house.  He  returned  to  Lyons  Station,  and  remained  there  with 
his  family  until  about  the  26th  of  October,  prior  to  the  election,  when 
he  went  with  his  family  to  Ventura.  He  began  housekeeping  about 
the  1st  of  November.  (Record,  pp.  72,  77,  and  84.)  The  law  of  Califor- 
nia covers  his  case.  Section  1239,  paragraph  10,  is  as  follows:  "The 
mere  intention  to  acquire  a  new  residence,  without  the  fact  of  removal, 
avails  nothing;  neither  does  the  fact  of  removal  without  the  intention." 
His  vote  was  challenged.  He  took  the  oath  required  by  law  and  voted. 
He  was  not  a  legal  voter.  It  was  stated  in  the  evidence  that  he  was  a 
Republican,  and  was  "voted"  by  those  who  were  working  for  Mr. 
Pacheco.  Mr.  Scott's  deposition  was  taken  by  Mr.  Pacheco's  attorney 
He  was  not  asked  how  he  voted.  The  proof  that  he  voted  for  Mr. 
Pacheco  is  suflQcient  to  shift  the  burden  upon  the  party  seeking  to  sus- 
tain his  vote,  and,  inasmuch  as  the  elector  was  produced  and  sworn, 
and  no  eflbrt  was  made  to  show  for  whom  he  voted,  it  may  be  assumed 
from  all  the  evidence  that  he  voted  for  the  sitting  member.  (McCrary, 
sections  293,  294 ;  Cushing's  American  Parliamentary  Law,  sections 
199,  210.) 

NOT   ON  THE   GREAT   REGISTER. 

The  contestant  alleges  that  three  persons  voted  for  the  sitting  mem- 
ber whose  names  were  not  on  the  great  register. 

Juan  de  Dios  Ortega  and  his  brother  Pedro  Ortega,  voted  at  Campo 
precinct,  San  Diego  County,  for  Mr.  Pacheco.  Their  names  were  not 
on  the  great  register,  as  required  by  law,  and  their  votes  must  be  re- 
jected.    (Record,  ])p.  15,  18,  26,  and  27.) 

Pedro  Lopez  voted  at  Anaheim  precinct,  Los  Angeles  County,  for 
Mr.  Pacheco.  It  is  alleged  that  his  name  was  not  on  the  great  register. 
There  was  a  name  of  Pedro  Lopez  on  the  register,  but  a  witness  stated 
there  were  two  of  that  name,  and  that  the  one  on  the  register  lived  in 
Los  Angeles  City.  The  evidence  is  not  conclusive  on  this  point.  The 
vote  should  be  counted.     (Record,  pp.  31,  32.) 

MARKED   BALLOTS. 

The  law  of  California  on  the  subject  of  marked  ballots  is  as  follows : 

Sec.  1206.  When  a  ballot  found  in  any  ballot-box  bears  upon  the  outside  thereof 
any  impression,  device,  color,  or  thing,  or  is  folded  in  a  manner  designed  to  distin- 
guish such  ballot  from  other  legal  ballots  de^wsited  therein,  it  must,  with  all  its  con- 
tents, be  rejected. 


14  DIGEST    OF    ELECTION    CASES. 

There  were  six  ballots  voted  for  Mr.  Pacheco  upon  which  the  judges 
of  election  indorsed  the  names  of  the  voters  and  the  words  "  Challenged 
because  not  in  the  precinct  thirty  days — challenge  disallowed,"  and  then 
signed  one  or  two  names  of  the  inspectors  of  the  election.  While  the 
strict  letter  of  the  law  would  exclude  these  ballots,  yet  the  spirit  of  the 
law  is  evidently  otherwise.  If  the  voter  had  placed  this  indorsement 
upon  the  ballot,  or  any  mark  whatever  by  which  it  could  be  distin- 
guished from  other  ballots,  they  should  be  rejected.  The  law  was  made 
to  protect  the  voter,  and  not  to  disfranchise  him. 

MORE  BALLOTS  THAN  NAMES  ON  THE  POLL  LIST. 

In  two  precincts,  Saticoy  and  Lau  Buenaventura,  there  were  more 
ballots  counted  than  there  were  names  on  the  poll-list ;  but  it  does  not 
appear  who  got  the  benefit  of  the  excess. 

SATICOY  PRECINCT. 

The  contestant  alleges  that  there  were  such  illegal  practices  at  this 
precinct  as  to  invalidate  the  whole  poll.  The  law  of  California  requires 
that  no  tickets  shall  be  folded  or  unfolded  or  exhibited  within  100  feet 
of  the  polls.  This  was  done  duriug  the  whole  day  at  this  precinct. 
But  while  the  parties  who  violated  the  law  may  be  punished,  the  law 
was  not  intended  to  provide  that  such  conduct  should  invalidate  the 
election.    We  cannot  see  any  good  reason  for  rejecting  this  poll. 

contestant's  case. 

This  concludes  the  questions  raised  by  contestant.  Recapitulating,  it 
will  be  seen  that  his  allegations  as  to  twelve  persons  who  voted  for  Mr. 
Pacheco,  and  who  were  not  entitled  to  vote,  have  been  sustained. 

three  other  cases. 

The  contestant  alleges  that  two  persons  by  the  name  of  Smock,  and 
another  whose  name  is  not  given,  voted  at  Bakersfield,  Kern  County, 
for  Mr.  Pacheco,  who  were  not  residents  of  the  precinct  for  thirty  days 
preceding  the  election.  Depositions  were  taken  in  regard  to-these  per- 
sons, in  pursuance  of  notice  in  the  contest,  in  due  time,  attorneys  of  both 
parties  being  present,  and  such  depositions  were  properly  forwarded  by 
mail  to  the  Clerk  of  the  House  of  Representatives.  But  these  deposi- 
tions have  never  been  received  by  the  Clerk  or  any  officer  of  the  House. 
The  contestant  has  obtained  the  ex  parte  affidavits  of  E.  E.  Calhoun,  who 
was  contestant's  attorney,  and  of  Samuel  L.  Cutter,  who  was  contestee's 
attorney,  at  the  taking  of  these  depositions  (Record,  pp.  94,  95,  and  96), 
which  affidavits,  sworn  to  October  18,  1877,  after  the  assembling  of  the 
special  session  of  Congress,  set  forth  the  substance  of  the  lost  deposi- 
tions. If  we  were  to  consider  as  legal  evidence  these  ex  parte  affidavits, 
one  of  them  made  by  Mr.  Pacheco's  attorney,  we  should  be  compelled  to 
reject  the  votes  of  these  three  persons.  But  we  are  not  permitted  to  con- 
sider ex  parte  affidavits  as  a  part  of  the  evidence  in  the  case.  If  the  facts 
established  by  the  lost  depositions  were  material  to  the  decision  of  the 
matters  in  controversy,  and  if  the  three  votes  in  question  should  be  suffi- 
cient to  determine  the  result,  the  contetstant's  remedy  would  have  been 
to  retake  the  depositions,  giving  due  notice  to  the  opposite  party.  But 
not  having  discovered  the  loss  until  Congress  assembled,  he  has  endeav- 
ored to  supply  the  lost  depositions  in  the  manner  indicated. 


WIGGINTON    VS.    PACHECO.  15- 

ILLEGAL   VOTING.  FOR   CONTESTANT  SUBMITTED  BY   CONTESTEE. 

The  contestee  alleges  that  the  following  persons  voted  for  Mr.  Wig- 
ginton,  and  were  illegal  voters : 

Jesus  Yorba  voted  in  San  Biego,  but  was  a  resident  of  Los  Angeles. 
It  is  alleged  that  he  voted  for  Mr.  Wigginton.  It  is  proven  that  he  had 
not  resided  in  the  precinct  where  he  voted  thirty  days  previous  to  the 
election.  But  the  evidence  is  conflicting  as  to  the  candidate  for  whom 
he  voted.  Yorba  was  a  Democrat,  and  went  to  the  polls  and  voted 
with  one  Angle  Smith,  also  a  Democrat.  Yorba  was  what  is  called 
"a  native  Californian,"  and  Smith  was  a  half-breed  American  and  Cal- 
ifornian.  It  was  proven  that  the  native  Californians,  as  a  class,  voted 
for  Mr.  Pacheco,  including  those  who  claimed  to  be  Democrats,  and 
were  unwilling  to  acknowledge  that  they  would  vote  for  a  Republican. 
And  one  witness  gave  it  as  his  opinion  that  Jesus  Yorba  voted  for  Mr. 
Pacheco.  In  the  midst  of  this  conflicting  evidence  it  Is  not  certain  for 
whom  he  did  vote.  His  vote,  although  illegal,  cannot  be  deducted  from, 
the  vote  of  either  of  the  parties.     (Record  pp.  99,  100,  101, 104,  107.) 

George  M.  Clark  voted  for  Mr.  Wigginton  at  San  Diego.  He  wrote 
his  own  name  on  the  bottom  of  the  ticket  with  a  lead  pencil.  (Record, 
pp.  100-105.)  The  law  of  California  in  reference  to  marked  ballots  is  as 
follows : 

Sec.  120().  When  a  ballot  fonnd  in  any  ballot-box  bears  upon  the  outside  thereof  any 
impression,  device,  color,  or  thing,  oris  folded  in  a  manner  designed  to  distingaish 
such  ballot  from  other  legal  ballots  deposited  therein,  it  mnat,  with  all  its  contents, 
be  rejected. 

Sec.  1207.  When  a  ballot  found  in  any  ballot-box  bears  upon  it  any  impression, 
device,  color,  or  thing,  or  is  folded  in  a  manner  intended  to  designate  or  impart 
knowledge  of  the  person  who  voted  such  ballot,  it  must,  with  all  its  contents,  he 
rejected. 

These  provisions  were  evidently  intended  to  secure  to  the  voter  abso- 
lute secrecy  as  to  his  ballot,  and  to  place  it  within  his  power  to  vote  a 
ballot  which  could  not  be  distinguished  by  the  election  ofiicials,  the 
challengers,  or  outsiders  from  any  other  ballots  that  were  being  voted. 
Section  1206  relates  wholly  to  marks  on  the  outside  of  the  ballot,  and 
cannot  be  applied  to  the  ballot  in  question,  as  it  is  conceded  that  this 
voter  wrote  his  name  on  the  face  of  the  ballot.  And  it  is  very  doubtful 
whether  the  strict  letter  of  the  other  section  (1207)  applies  to  Clark's 
ballot.  There  was  nothing  on  the  face  of  the  ballot "  to  designate  or  im- 
part knowledge  of  the  person  who  voted  such  ballot.''''  The  inspectors  were 
not  authorized  to  presume  that  Clark  voted  this  ticket  merely  because 
they  found  his  name  upon  it.  If  any  presumption  is  to  be  indulged  in, 
it  is  this:  that  the  name  written  on  the  ballot  was  intended  to  be  voted 
for,  instead  of  the  printed  name  next  above  it.  Hence  this  ballot  had 
nothing  on  it  to  designate  or  impart  knowledge  of  the  person  who  voted 
it.  The  person  who  voted  it  could  identify  it,  and  so  could  every  voter 
identify  his  ticket  if  he  had  scratched  one  name  and  written  another 
upon  it.  He  would  recognize  his  own  handwriting.  But  the  statute 
was  not  intended  to  place  it  out  of  the  power  of  each  voter  to  recog- 
nize his  own  ballot.  It  was  intended  to  protect  the  voter  in  his  right  to 
vote  a  secret  ballot.  If  there  were  any  doubt  as  to  the  letter  of  the 
law,  there  can  be  none  as  to  the  spirit  of  it.  There  is  no  charge  or 
8usi)icion  of  fraud,  intimidation,  or  improper  influences  being  exerted 
over  the  voter.  It  would  certainly  be  perfectly  legal  for  the  voter  to 
publish  how  he  voted.  The  evidence  in  this  case  fails  to  disclose  what 
was  done  by  the  inspectors  with  Clark's  ballot.  I^fothing  is  said  as  to 
whether  they  counted  or  rejected  it.    If  it  be  contended  that  the  law 


16  DIGEST    OF    ELECTION    CASES. 

required  that  the  ballot  should  be  rejected,  then,  iu  the  absence  of  proof 
to  the  coutrary,  we  must  presume  that  the  election  officers  did  their 
duty,  as  required  by  law,  and  rejected  it.  And  if  it  is  contended  that 
the  ballot  was  a  legal  one,  then  we  must  assume,  iu  the  absence  of 
proof  to  the  contrary,  that  the  officers  have  done  their  duty  and  counted 
it.  In  either  event  we  are  not  at  liberty  to  change  the  result  by  count- 
ing or  rejecting  this  ballot. 

John  Doran  voted  for  Mr.  Wigginton  in  the  third  ward  of  the  city 
of  San  Diego.  He  was  a  laborer,  without  family,  and  worked  from  place 
to  place.  He  had  only  been  iu  the  precinct  where  he  voted  about  a 
week,  and  at  the  hotel  where  he  stopped  he  gave  his  residence  at  Cajon, 
which  is  in  another  precinct.  His  vote  must  be  rejected.  (Record,  p. 
102.) 

Joseph  Marks  and  John  Geddens  vot^d  for  Mr.  Wigginton  at  An- 
quanga  precinct,  San  Diego  County.  One  witness,  William  Reed,  testi- 
fied that  they  had  not  lived  in  the  precinct  thirty  days  before  the  elec- 
tion. The  evidence  is  very  slight,  but  perhaps  enough  to  shift  the  bur- 
den upon  the  party  claiming  their  votes.  There  is  no  other  evidence  in 
the  record,  and  the  votes  should  be  rejected.     (Record,  p.  115.) 

James  A.  Keyes  voted  at  Campo,  San  Diego  County,  for  Mr.  Wig- 
ginton. He  was  born  in  Ireland,  was  fifty-three  years  of  age,  and 
came  to  the  United  States  in  IS-tT.  He  testified  that  he  had  not,  pre- 
vious to  the  election,  applied  for  any  naturalization-papers,  and  had 
never  declared  his  intention  to  become  a  citizen  until  the  day  his  depo- 
sition was  taken.  He  was  not  cross-examined,  as  neither  contestant  nor 
his  attorney  was  present  at  the  taking  of  his  deposition.  (Record,  p.  117.) 
Keyes  must  have  sworn  that  he  had  been  naturalized  in  order  to  get 
his  name  on  the  great  register.  But,  in  the  absence  of  any  evidence 
contradicting  his  deposition  in  the  record,  his  alien  character  is  estab- 
lished, and  his  vote  must  be  rejected. 

Thomas  Scott  Methvin  voted  at  Pleasant  Valley  precinct,  in  Ventura 
County.  An  effort  was  made  to  prove  that  he  was  a  non-resident  of 
the  State  and  precinct,  and  that  he  voted  for  Mr.  Wigginton.  The 
voter  was  challenged,  on  the  ground  of  non-residence,  and  he  swore  his 
vote  in. 

The  legal  status  of  this  voter  is  in  considerable  doubt.  It  is  not  con- 
clusively proven  that  he  was  a  non-resident,  nor  is  it  certain  that  he 
voted  for  the  contestant.  The  evidence  is  not  sufficient  to  warrant  us 
in  rejecting  his  vote.     (Record,  pp.  129,  130-132.) 

John  Peterson  voted  for  contestant  at  Redwood  City,  San  Mateo 
County.  He  obtained  his  naturalization-papers  from  the  twelfth  district 
court,  at  San  Francisco,  the  day  before  the  election.  John  Hanna  tes- 
tified at  the  court  that  he  knew  Peterson  in  California  in  1858,  and  at 
that  time  Peterson  was  a  minor.  Upon  this  evidence  the  court  granted 
the  papers.  Peterson's  evidence  was  taken  in  the  contest  to  show  that 
when  he  was  in  California  he  remained  only  a  few  weeks,  and  returned 
to  Denmark,  and  that  he  did  not  come  to  this  country  to  reside  until 
1868.  This  would  make  him  of  age  when  he  came  the  second  time,  as 
he  was  born  in  1841.  Upon  this  evidence  (Record,  pp.  144-146)  the 
contestee  asks  us  to  reject  Peterson's  vote  on  the  ground  that  his  nat- 
uralization-papers were  fraudulently  procured.  His  papers  were  issued 
by  a  court  of  competent  jurisdiction,  were  regular  in  every  respect,  and 
upon  the  evidence  before  the  court  at  the  time,  the  court  decided  rightly. 
Your  committee  are  of  the  opinion  that  papers  issued  iu  this  manner 
cannot  be  attacked  in  a  collateral  proceeding.  And  if  this  could  be 
done,  Peterson's  oath  would  have  little  weight  in  such  a  contest,  for  he 


WIGGINTON    VS.    PACHECO.  17 

either  swore  falsely  before  the  court  or  in  the  contest.  He  was  cor- 
roborated in  his  testimony  before  the  court,  but  his  evidence  in  the  con- 
test denyinjr  his  citizenship  stands  unsup])orted. 

Thomas  O'Mara  voted  in  the  city  of  Los  Angeles.  The  contestee 
claims  that  he  falsely  personated  another  person  of  the  same  name.  He 
was  challenged  on  the  ground  that  he  was  not  the  person  whose  name 
was  on  the  great  register,  but  he  swore  that  he  was,  and  his  vote  was 
received.  The  evidence  barely  raises  a  doubt  upon  this  point,  and  is 
not  sufficient  to  establish  the  illegality  of  the  vote.  The  evidence  also 
fails  to  show  for  whom  he  voted.     (Record,  p.  149.) 

Gustave  0.  Perret  voted  at  the  fourth  precinct  of  Los  Angeles  City. 
His  vote  was  challenged  on  the  ground  that  he  was  not  a  citizen  of  the 
United  States,  and  that  he  was  not  enrolled  upon  the  great  register  of 
Los  Angeles  County.  He  presented  a  certificate  of  registration,  and  his 
vote  was  received  by  the  board  of  election.  There  is  some  doubt  as  to 
whether  this  voter  had  been  naturalized,  but  it  is  not  shown  for  whom 
lie  voted.  The  only  evidence  as  to  the  candidate  for  whom  he  voted  is 
that  he  got  a  ticket  from  a  Democrat,  but  the  witness  did  not  know 
whether  the  elector  voted  that  ticket  or  not.     (Record,  pp.  159, 160, 161.) 

William  A.  Brophy  voted  for  contestant  in  the  city  of  Los  Angeles, 
His  residence  was  in  Soledad  Township.  His  vote  must  be  rejected. 
(Record,  p.  159.) 

Francis  Tamiet  voted  in  the  city  of  Los  Angeles.  There  is  some  doubt 
as  to  his  being  a  citizen,  but  there  is  no  evidence  that  he  voted  for  the 
contestant.    (Record,  pp.  155,  156,  161.) 

At  La  Graciosa  precinct,  in  Santa  Barbara  County,  two  ballots  were 
voted  upon  which  Mr.  Wigginton's  name  was  printed  and  Mr.  Pacheco's 
written,  and  the  printed  name  was  not  erased.  Under  section  1203  of 
the  statutes  of  California  both  these  ballots  should  have  been  counted 
for  Mr.  Pacheco,  but  it  seems  that  only  one  of  them  was.  He  is 
therefore  entitled  to  one  vote  more  and  Mr.  Wigginton  one  less  in  this 
precinct. 

Pablo  Rios  voted  at  Wilmington,  Los  Angeles  County.  He  arrived 
at  the  polls  late  in  the  day,  and  fearing  they  would  soon  be  closed, 
took  the  first  ticket  he  could  find.  It  was  a  Democratic  ticket,  but  he 
did  not  desire  to  vote  for  any  person  on  that  ticket  except  for  George 
Hinds  for  supervisor  of  the  county.  He  erased  all  other  names  on  the 
ticket,  and  wrote  Mr.  Pacheco's  name  on  the  top  at  the  right-hand  side, 
opposite  the  names  of  the  Presidential  electors,  which  were  erased.  The 
judges  returned  this  ballot  as  a  vote  cast  for  R.  Pacheco  for  Presidential 
elector,  and  did  not  count  it  for  him  for  Representative  in  Congress. 
Rios  was  called,  and  testified  that  he  intended  to  vote  for  Pacheco  for 
Representative  in  Congress.  The  evidence  is  that  the  names  on  the 
ballot,  except  that  of  Hinds,  were  erased,  but  there  is  no  evidence  that 
the  words  "for  Presidential  electors,"  or  the  words  "for  Representative 
in  Congress,"  were  erased.  Upon  the  face  of  the  ballot,  according  to 
the  evidence,  Mr.  Pacheco  was  voted  for  for  Presidential  elector.  There 
is  no  ambiguity  about  this.  The  law  of  California,  in  reference  to 
counting  obscure  ballots,  is  as  follows: 

Sec.  1201.  No  ballot  or  part  thereof  must  be  rejected  by  reason  of  any  obscurity 
therein  in  relation  to  the  uaiue  of  the  person  voted  for,  or  the  designation  of  the  office, 
if  the  board,  from  an  inspection  of  the  ballot,  can  determine  the  person  voted  for  and  the 
office  intended. 

An  inspection  of  this  ballot  would  show  that  the  name  of  R.  Pacheco 
H.  Mis.  58 2 


18  DIGEST  OF  ELECTION  CASES. 

appealed  after  the  words  "  for  electors  of  President  aud  Vice-President 
of  the  LTuited  States."  Can  such  a  ballot  be  counted  for  the  contestee 
for  Representative  in  Congress,  or  is  it  admissible  for  the  voter  to  ex- 
plain or  contradict  such  ballot  by  final  evidence  after  it  has  been  cast? 
Mr.  McCrary,  in  his  work  on  elections  (section  407),  states  the  rule 
which  should  govern  in  cases  of  this  kind  as  follows : 

While  ir  is  trne  that  evidence  aliunde  may  be  received  to  explain  an  imperfect  or  am- 
bignons  ballot,  it  does  not  by  any  means  follow  that  s^ich  evidence  may  be  received  to 
give  a  ballot  a  meaning  or  effect  hostile  to  what  it  expresses  on  its  face.  The  intention 
of  the  voter  cannot  be  proven  to  contradict  the  ballot,  or  when  it  is  opposed  to  the 
paper  ballot  which  he  has  deposited  in  the  ballot-box.  (See,  also,  People  vs.  Seaman," 
5  Denio,  409;  State  vs.  Goldthwait,  16  Wise,  .'i52;  People  vs.  Fegiirson,  «  Cowen,  102; 
People  vs.  Cook,  14  Barbour,  259.) 

When  a  ballot  clearly  designates  the  office  to  be  filled  and  the  name 
of  the  person  A'oted  for,  no  court  has  ever  permitted  the  voter  to  contra- 
dict his  ballot,  by  evidence  that  he  intended  to  vote  for  a  difterent  per- 
son, or  for  the  same  person  for  a  difterent  office. 

Your  committee  do  not  feel  at  liberty  to  depart  from  the  unbroken 
line  of  precedents  in  cases  of  this  kind,  although  it  is  conceded  in  this 
case  that  the  rule  works  a  hardship  to  the  voter.  It  is  sometimes  neces- 
sary to  sacrifice  the  merits  of  a  case  in  order  to  maintain  an  inflexible 
legal  rule.     This  ballot  seems  to  present  such  a  contingency. 

Some  irregularities  occurred  in  reference  to  the  vote  of  Teraecula 
precinct,  San  Diego  County.  This  precinct  gave  a  majority  of  9  votes 
for  contestant.  But  for  the  reasons  stated  in  reference  to  Saticoy  pre- 
cinct, we  are  of  the  oj>inion  that  the  precinct  would  be  counted  as  re- 
turned.   Neither  precinct  should  be  excluded. 

From  the  foregoing,  it  will  be  seen  that  the  contestant's  vote,  as  re- 
turned, was  19,103.  From  this  must  be  subtracted  1  vote  in  La  Gra- 
ciosa  precinct,  where  contestee's  name  was  printed  on  the  ballot,  but 
not  erased,  and  contestee's  name  was  written  under  it;  and  also  the 
votes  of  John  Doran,  Joseph  Marks,  John  Geddins,  James  A.  Keyes^ 
and  W.  A.  Brophy ;  in  all,  six  votes. 

From  the  foregoing  it  will  appear  that  Mr.  Wigginton  received,  ac- 
cording to  the  returns,  19,103.  From  this  we  must  deduct  the  vote  il- 
legally counted  for  him  and  the  five  votes  illegally  cast  for  him,  which, 
would  make  his  legal  vote  19,097. 

Mr.  Pacheco  received,  according  to  the  returns,  19,104.  To  this  must 
be  added  one  vote  in  La  Graciosa  precinct,  which  would  increase  his 
vote  to  19,105.  From  this  must  be  deducted  the  12  illegal  votes  «a8t 
for  him,  which  would  make  his  legal  vote  19,093. 

CONCLUSION. 

Your  committee,  therefore,  find  that  Peter  D.  Wigginton  received  for 
Kepresentative  in  Congress  from  the  fourth  district  of  California  19,097 
votes,  aud  that  Romualdo  Pacheco  received  19,093  votes ;  and  that  the 
former,  having  received  a  majority  of  all  the  legal  votes  cast,  is  duly 
elected. 

Your  committee  recommend  the  adoption  of  the  following  resolu- 
tions : 

Resolved,  That  Romualdo  Pacheco  is  not  entitled  to  a  seat  in  this 
House  as  a  Representative  in  the  Forty-fifth  Congress  from  the  fourth 
Congressional  district  of  California. 

Resolved,  That  Peter  D.  Wigginton  is  entitled  to  a  seat  in  this  House 


WIGGINTON    VS.    PACHECO.  19 

as  a  Representative  in  the  Forty-fifth  Congress  from  the  fourth  Con- 
gressional district  of  California. 
All  of  which  is  respectfully  submitted. 

JOHN  T.  HAKRIS. 

J  AC.  TURNEY. 

JERE  if.  WILLIAMS. 

THO'S  R.  COBB. 

Excepting  the  conclusion  of  the  majority  of  the  committee  as  to  the 
vote  of  Charles  Gilbert,  I  concur  in  this  report. 

MILTO^^  A.  CANDLER. 

I  concur  in  the  report  of  the  committee,  except  as  to  the  vote  of  Mon- 
terey County  and  as  to  Pratt  and  Methvin,  and  file  a  separate  opinion 
herein. 

WILLIAM  M.  SPRINGER. 

I  agree  with  the  conclusion  of  the  majority,  except  with  regard  to  the 
cases  of  Scott  and  Waterman.  In  these  cases  I  am  of  opinion  that  the 
votes  were  legal,  and  should  be  counted  for  Pacheco. 

E.  JNO.  ELLIS. 


ADDENDA    TO    REPORT. 

The  undersigned  agrees  with  the  majority  of  the  committee  in  their 
report,  except  that  part  of  it  relating  to  the  vote  of  Monterey  County 
and  the  votes  of  Pratt  and  Methvin. 

In  reference  to  the  vote  of  Monterey  County,  it  appears  that  the  clerk 
of  the  county,  who  was  also  clerk  of  the  board  of  supervisors,  whose 
duty  it  was  to  canvass  the  votes  cast,  changed  the  result  as  found  by 
the  board  of  canvassers,  altered  the  record  so  as  to  make  it  correspond 
with  his  own  count,  and  so  certified  it  to  the  secretary  of  state. 

The  board  of  canvassers,  consisting  of  three  persons,  met  at  the  proper 
time  and  place  and  canvassed  the  votes  cast,  and  found,  and  caused  to 
be  entered  of  record,  that  Mr.  Pacheco  received  1,208  votes,  and  Mr. 
Wigginton  988.  The  board  then  adjourned  sine  die.  The  clerk  entered 
this  result  upon  the  record  as  required  by  law.  The  next  morning  on© 
of  the  members  of  the  board  came  into  the  clerk's  office,  and  he  and  the 
clerk  concluded  that  the  board  had  made  an  error  in  the  count  of  San 
Lorenzo  precinct;  that  Mr.  Wigginton  had  credited  to  him  29  votes  in 
that  precinct,  but  that  they  thought  27  votes  were  all  he  had  really 
received.  Without  notice  to  the  other  members  of  the  board,  the  clerk 
altered  the  record  so  as  to  make  it  appear  that  Mr.  Wigginton  had 
received  only  27  votes  in  that  precinct,  and  also  changed  the  aggre- 
gate vote  of  the  county  from  988  to  986.  This  altered  record  was  pre- 
sented by  the  clerk  to  the  chairman  of  the  board  for  his  signature,  and 
it  was  signed  by  him ;  but  the  clerk  did  not  notify  him  that  the  change 
had  been  made.  If  the  clerk  had  been  actuated  in  making  the  altera- 
tion of  the  record  by  a  desire  to  arrive  at  the  truth,  he  certainly  would 
have  informed  the  chairman  and  the  other  members  of  the  board  of  the 
alteration  he  had  made;  for,  although  slight,  it  actually  changed  the 
result  in  the  whole  district  and  elected  Mr.  Pacheco  by  one  majority, 
instead  of  Mr.  Wigginton  by  the  same  majority.*     The  change  in  the 

"  Bell  V8.  Pike,  53  N.  H.  Keporte,  481. 


20  DIGEST  OF  ELECTION  CASES. 

record  then  became  a  matter  of  the  most  vital  imi>ortance,  and  as  one 
■week  had  elapsed  from  the  day  of  the  election  to  the  time  when  the 
change  was  made,  it  is  presumable  that  the  clerk  was  aware  of  the  result 
in  the  other  counties  of  the  district,  and  knew  when  he  made  the  change 
of  the  record  that  he  had  actually  changed  the  result  in  the  whole  dis- 
trict. Considering  the  exciting  and  important  character  of  the  election, 
and  the  further  fact  that  the  political  complexion  of  the  National  House 
of  Eepresentatives  was  exceedingly  close  and  at  that  time  not  definitely 
known,  and  considering  further  that  the  change  was  made  without  in- 
forming the  majority  of  the  board  of  the  fact,  the  conduct  of  the  clerk 
is  open  to  grave  suspicion.  That  his  conduct  was  illegal  there  can  be 
no  question;  that  it  was  fraudulent  may  reasonably  be  presumed,  in 
the  absence  of  proof  to  the  contrary. 

On  the  17th  day  of  November  the  clerk's  certified  abstract  of  the 
vote  in  Monterey  County  was  filed  in  ofiice  of  secretary  of  state.  This 
return  showed  that  Mr.  Wigginton  had  received  986  votes  instead  of 
988,  as  actually  found  by  the  board  of  canvassers. 

On  the  8th  day  of  December  thereafter,  an  alternative  writ  of  man- 
date was  issued  out  of  the  district  court  of  the  twelfth  judicial  district 
of  the.State  of  California,  on  the  application  of  Peter  D.  Wigginton, 
and  directed  to  and  served  upon  the  county  clerk  of  Monterey  County, 
requiring  and  commanding  him  to  forthwith  make  and  certify  to  the 
secretary  of  state  a  true  abstract  of  the  vote  for  Representative  in  Con- 
gress, as  ascertained  and  declared  to  have  been  cast  in  said  county  of 
Monterey  by  the  board  of  supervisors  of  said  coanty,  and  as  was  en- 
tered in  pursuance  of  law  upon  the  records  of  said  board  of  super- 
visors by  the  clerk  of  said  county,  or  to  show  cause  on  a  certain  day  in 
said  writ  named  why  the  writ  should  not  be  made  peremptory.  In 
obedience  to  said  writ  the  county  clerk  did  make  and  certify  and  for- 
ward to  the  secretary  of  state  on  the  8th  daj'  of  December  a  true  ab- 
stract of  the  vote  of  said  county,  as  ascertained  by  the  board  of  can- 
vassers and  entered  of  record  by  their  direction.  The  clerk  also  certi- 
fied that,  after  the  record  had  thus  been  made  up,  it  had  been  changed 
so  that  it  then  showed  that  Mr.  Wigginton  had  allotted  to  him  in  San 
Lorenzo  precinct  27  votes  instead  of  29,  as  found  and  entered  of  record 
by  the  board  of  canvassers.  This  second  return  was  filed  in  the  office 
of  the  secretary  of  state  on  the  11th  of  December. 

On  the  3d  day  of  January,  1877,  Mr.  Pacheco  filed  in  the  supreme 
<}ourt  of  the  State  of  California  a  petition  for  a  writ  of  mandate  against 
the  secretary  of  state,  praying  that  he  be  required  and  commanded  to 
certify  to  the  governor  the  votes  given  for  Representatives  in  Congress 
from  the  fourth  Congressional  district,  and  to  accept  and  use,  as  the 
returns  from  Monterey  County,  the  abstract  of  votes  which  was  first 
certified  to  him  by  the  clerk  of  Monterey  County,  and  filed  in  his  office 
on  the  17th  daj'  of  November.  This  petition  set  forth  all  the  facts,  in- 
cluding the  two  returns  above  mentioned. 

The  respondent  demurred.  The  demurrer  was  overruled,  with  leave 
to  the  respondent  to  answer.  The  respondent  answered  fully,  and  the 
case  was  heard  upon  petition  and  answer  at  the  last  April  term  of  the 
supreme  court  of  California.  The  court  consists  of  five  members,  three 
of  whom.  Chief  Justice  Wallace,  and  Justices  Niles  and  Rhodes,  held 
that  a  peremptory  writ  of  mandamus  should  issue,  in  accordance  with 
the  prayer  of  the  petition.  The  other  two  members  of  the  court.  Jus- 
tices McKinstry  and  Crockett,  dissented,  and  filed  separate  opinions. 

Mr.  Justice  Rhodes,  in  delivering  the  opinion  of  the  court,  said: 

The  law  doesnotvesthimCthesecretary  of  state]  with  authority  to  inquire  whether 
the  board  of  supervisors  correctly  canvassed  the  returns  from  the  several  precincts,  or 


WIGGINTON    VS.    PACHECO.  21 

whether  the  record  correctly  states  the  result  of  the  cauTass,  as  made  or  declared,  or 
whether  the  record  was  properly  made  up,  nor  to  investigate  any  question  relating  to 
the  proceedings  which  were  ha<l  i)rior  to  the  making  of  the  certified  abstract.  That 
document,  being  in  the  form  prescribed  by  law,  is  the  only  one  upon  which  he  is  re- 
quired or  authorized  to  act  in  his  official  capacity  in  estimating  the  vote  of  the  dis- 
trict ;  and  neither  his  power  nor  duty  in  that  regard  is  enlarged  or  changed  by  reason 
of  the  fact  that  there  are  in  his  oflBce  other  papers  or  certificates  for  which  no  pro- 
vision is  made  by  the  election  laws. 

It  is  his  duty,  in  comparing  and  estimating  the  votes,  as  provided  for  by* section 
134()  of  the  Political  Code,  to  comx)are  and  estimatethe  votes' contained  in  the  certified 
abstract,  dated  the  17th  day  of  November,  1876,  marked  Exhibit  A. 

Chief  eTustice  Wallace,  in  his  separate  opinion,  sustaining  the  conclu- 
sion of  the  majority  of  the  court,  said : 

The  so-called  certificate  of  December  8,  being  extra-oflScial,  has,  therefore,  no  sanc- 
tity; its  value  is  precisely  that  of  the  certificate  or  written  statement  of  any  other 
respectable  gentleman,  who,  professing  to  be  personally  cognizant  of  what  had  trans- 
pired when  the  canvass  was  made  by  the  board,  might  have  addressed  a  letter  to  the 
secretary  of  state,  assuming  to  detail  events  as  he  remembered  them  to  have  happened. 

Upon  this  view  there  can  be  no  question  made  before  the  secretary,  nor  before  us,  as 
to  what  in  this  case  constitutes  the  record  of  the  board  of  supervisors,  remaining  in 
the  hands  of  its  clerk.  The  argument  which  denies  to  the  clerk  the  power  to  alter  or 
amend  the  records  in  his  possession  becomes  merely  abstract,  since  (the  certificate  of 
the  8th  of  December  being  out  of  the  case)  there  is  nothing  to  show  that  he,  in  point 
of  fact,  assumed  to  do  so. 

Upon  quo  xcarranto.ov  upon  information  in  the  nature  of  quo  warranto,  upon  a  con- 
test had,  pursuant  to  the  provisions  of  the  statute  of  the  State,  or  before  the  House  of 
Representatives  of  the  United  States,  under  its  constitutional  power  to  judge  of  the 
election  and  qualifications  of  its  members,  this  and  kindred  questions  may  be  examined 
and  correctly  determined,  for  there  would  be  jurisdiction  to  entertain  the  inquiry,  and, 
what  is  of  much  importance  in  ascertaining  the  fact,  the  power  to  summon  witnesses 
and  enforce  the  production  of  testimony,  upon  notice  given  to  the  parties  in  interest, 
who  might  appear  in  person  and  by  counsel. 

The  chief  justice  was,  therefore,  of  the  opinion  that  the  only  return 
from  the  county  of  Monterey  rightfully  before  the  secretary  of  state 
was  the  certified  abstract  of  IS^ovember  15,  which  was  filed  on  the  17th 
of  that  month,  and  that  the  secretary  must  count  the  votes  for  Repre- 
senatatives  in  Congress  only  as  they  appear  by  that  abstract. 

Mr.  Justice  Crockett,  dissenting,  said: 

In  such  a  case,  the  answer  to  an  application  for  a  mandamus  would  be  that  the  writ 
is  intended  to  prevent  a  failure  of  justice,  and  cannot  be  used  to  perpetuate  a  wro»g, 
or  to  compel  the  performance  of  act  the  result  of  which  would  contravene  public  policy 
or  violate  good  morals.  In  this  State  the  policy  of  the  law,  as  expressed  in  the  stat- 
ute, is  to  confide  to  the  board  of  snpervi.sors  the  exclusive  authority  to  canvass  the 
election-returns  of  a  county  and  to  declare  the  result,  and  its  action  in  the  premises, 
when  in  due  form  and  free  from  fraud,  is  absolutely  conchisive  ou  all  persons  whom- 
soever, except  in  the  case  of  a  contested  election.  We  are  asked  in  this  case  to  compel 
the  secretary  of  state,  by  a  peremptory  writ,  to  estimate  and  count  the  vote  in  accord- 
ance with  a  certificate  of  the  clerk,  which,  as  appears  on  the  face  of  the  petition, 
states  a  result  not  only  not  declared  by  the  board,  but  essentially  different  from  that 
which  was  declared,  and  which  was  duly  transcribed  into  the  record.  To  award  the 
writ  under  these  circumstances  would  be  to  contravene  the  plain  policy  of  the  law, 
which  confides  to  tfie  board  the  exclusive  authority  to  declare  the  result  of  an  election, 
jiud  which  has  not  iutrtisted  to  the  clerk  any  supervisory  power  over  the  board  in  cor- 
recting its  mistakes  or  otherwise.  Nor  is  it  material  to  inquire  whether  the  board  in 
fact  committed  the  mistake  imputed  to  it,  and  whether  the  record,  as  changed  by  the 
clerk,  states  the  true  result  of  the  election. 

Having  no  authority  to  declare  the  result  or  to  correct  any  mistakes  of  the  board, 
the  att4?mpt  of  the  clerk  to  do  so  was  simply  a  nullity  ;  and  to  award  the  writ  as  prayed 
for  would  be  virtually  to  decide  i  hat  the  resnlt.  as  declared  by  the  clerk,  was  valid  and 
obligatory,  notwithstanding  the  statute  explicitly  provides  that  the  authority  to  can- 
vass the  returus  and  declare  the  result  is  confided  exclusively  to  the  board.  If  a  prac- 
tice of  that  kind  were  tolerated  it  would  'necessarily  involve  an  inquiry  whether  tjje 
result  as  declared  by  the  board,  or  that  declared  by  the  clerk,  was  the  true  result  of 
the  election ;  and  that,  too,  though  it  is  conceded  on  all  sides  that  the  clerk  has  no 
authority  in  the  premises.  In  determining  whether  the  writ  ought  to  issue  it  is  our 
duty  to  uphold  the  plain  policy  of  the  law.  which  provides  that  the  result,  as  declared 


22  DIGEST    OF    ELECTION    CASES. 

by  the  board,  shall  be  absolutely  conclusive,  except  in  the  case  of  a  contested  election* 
To  issue  the  writ  as  prayed  for  would  be  to  contravene  this  policy  by  compelling  the 
secretary  of  state  to  accept  and  act  upon  a  certificate  of  the  clerk  which  does  not  state 
the  result  as  declared  by  the  board,  but  a  different  result  declared  by  the  clerk.  For 
these  reasons  I  am  of  opinion  that  the  writ  should  be  denied. 

Mr.  Justice  McKinstry,  in  his  dissenting  opinion,  said : 

As  tlvB  case  is  now  presented,  it  must  be  assumed  that  the  averments  of  the  aa 
swer  are  true.     What,  then,  is  the  record  ? 

:  It  would  seem  the  answer  must  be  that  it  consists  of  the  original  entries  in  the  min 
nte-book,  that  which  stood  there  when  the  task  of  entering  the  statement,  which  the 
statute  requires  the  clerk  to  enter  "as  soon  as  the  result  is  declared,"  was  completed. 

It  would  perhaps  be  difficult  in  some  cases  to  determine  wheu  the  record  was  com- 
pleted. Having  written  a  statement,  the  clerk  would  be  competent  at  the  same  sit- 
ting, and  probably  within  a  reasonable  time  afterward,  to  correct  an  error  or  to  amend 
an  imperfect  statement,  so  as  to  make  itaccord  with  the  actual  declaration  of  the 
board,  and  a  court  would  not  seize  upon  a  merely  temporary  suspension  from  hin  labor 
and  hold  such  to  be  a  final  cessation.  Perhaps  no  definite  period  of  time  could  be  fixed 
which  would  of  itself  establish  that  the  work  was  finished,  but  all  changes  must  be 
made  by  the  clerk  while  his  clerical  task  of  entering  the  declaration  of  the  board 
is  in  fieri. 

I  cannot  believe  that  when  his  task  of  entering  the  declaration  of  the  board  had  been 
finished,  and  after  a  lapse  of  time,  however  inconsiderable,  the  clerk  cau  initiate  an 
independent  inquiry,  not  in  respect  to  what  the  supervisors  declared  when  they  can- 
vassed the  vote,  but  avowedly  in  respect  to  what  they  ought  to  hare  declared,  and  then 
alter  the  minutes  which  contain  the  real  declaration,  so  that  they  shall  accord  with 
his  own  notions  of  a  correct  declaration  of  the  vote.  After  such  alterations  the  writ- 
ing would  not  constitute  a  record  of  the  proceedings  of  the  board,  but  of  the  judgment 
of  the  clerk.  The  clerk  has  no  potcer  to  transmit  to  the  secretary  any  other  paper  than 
a  copy  of  the  proceedings  of  the  board.  The  statute  does  not  make  the  clerk  a  can- 
vasser. He  is  the  mere  scribe,  whose  office  is  performed  when  he  makes  record  of  the 
determination  of  the  board  and  transmits  a  copy  of  such  record  to  the  secretary  of 
state.  If  the  allegations  of  the  answer  are  correct,  the  clerk  did  not  confine  himself 
to  his  proper  duties,  but  assumed  to  discharge  those  imposed  by  law  upon  the  board 
of  supervisors,  and  that,  too,  after  they  had  performed  those  duties,  thus  arrogating 
the  power  to  reverse  the  decision  of  the  proper  canvassing-officers. 

It  will  be  seen  that  the  decision  of  the  majority  of  the  court,  while  it 
directs  the  secretary  of  state,  a  mere  ministerial  officer  without  judicial 
discretion,  to  count  only  the  first  return,  yet  the  opinion  expressly  recog- 
nizes the  right  and  duty  of  the  House  of  Representatives,  under  its  con- 
stitutional power  to  judge  of  the  election,  returns,  and  qualifications  of 
its  own  members,  to  examine  and  correctly  determine  this  and  kindred 
questions.  Hence  the  House  is  not  embarrassed  in  the  least  by  the 
decision  of  the  supreme  court  of  California  in  this  case. 

But  since  the  decision  of  the  supreme  court  may  be  cited  to  sustain 
the  validity  of  the  first  return  made  by  tbe  clerk  of  Monterey  County, 
in  the  absence  of  other  evidence  than  that  contained  in  tbe  records  of 
the  courts  in  the  mandamus  cases,  the  undersigned  respectfully  submit 
that  the  opinions  of  the  dissenting  justices  correctly  set  forth  the  rule 
of  law  which  should  govern  in  tbe  premises.  And  this  view  is  strength- 
ened by  a  recent  decision  of  tbe  supreme  court  of  the  State  of  Missouri 
in  a  similar  case.*  The'Missouri  court  unanimously  held,  in  the  appli- 
cation for  mandamus  of  the  sitting  member  of  this  House  from  the 
third  district  of  that  State  (Mr.  Metcalfe),  that  it  is  the  duty  of  the  court, 
in  proceedings  for  mandamus,  to  determine  for  the  canvassing  officer 
what  the  true  return  is;  and  having  ascertained  what  was  tbe  true 
return,  tbe  court  would  command  the  ministerial  officer  to  count  the  vote 
accordingly.  There  were  two  returns  before  the  secretary  of  state  of 
C^alifornia  from  the  county  of  Monter«\v.  Both  these  returns  were 
signed  by  the  same  clerk,  under  the  same  seal  of  office.    The  first  return 

"The  State,  ex  rel.  Metcalfe  v*.  Garesche  et  al.,  reported  in  Saint  Louis  Republican 
ofOctober31, 1877. 


WIGGINTON    VS.    PACIIECO.  23 

•was  forwarded  by  the  clerk  of  his  own  volition;  the  other  in  response 
to  an  alternative  writ  of  mandamus  issuing  out  of  a  court  of  compe- 
tent jurisdiction.  Applying  the  rule  laid  down  by  the  Missouri  supreme 
court  it  would  have  been  the  duty  of  the  California  court  to  determine 
which  of  the  two  returns  truly  set  forth  the  result  of  the  vote  as  ascer- 
tained by  the  board  of  supervisors  of  Monterey  County.  There  could 
have  been  but  one  opinion  as  to  what  the  result  was,  as  ascertained  and 
declared  by  the  board  of  canvassers.  The  board  was  alone  authorized 
by  law  to  canvass  the  votes,  and  the  clerk  hatl  no  part  of  this  duty  to 
perform,  except  to  record  the  result  as  ascertained  by  the  board.  (See 
Bellr.s'.  Pike,  53  J?.  H.  Reps.,  473:  Hill  vs.  Goodwin,  56  N.  H.  Reps., 
441.) 

The  case  of  Hill  vs.  Goodwin  is  an  important  one,  and  the  opinion 
therein  fully  sustains  the  position  of  the  undersigned  in  this  case.  It  was 
urged  by  counsel  for  Mr.  Pacheco  in  the  argument  before  the  committee 
that  tlie  record  of  the  proceedings  in  the  mandamus  cases  could  not  be  used 
as  evidence  in  the  contested-election  case  between  the  contestant  and  the 
sitting  member.  It  is  true  that  such  records  cannot  be  used  to  prove  or 
to  discredit  any  material  fact  in  the  present  issue.  But  they  may  be 
used  to  show  that  either  of  the  parties  made  admissions  or  swore  to 
statements,  in  such  proceedings,  which  preclude  them  in  this  contest. 
Mr.  Pacheco,  in  his  application  for  a  writ  of  mandate,  set  forth,  as  a 
part  of  his  petition,  an  affidavit  of  the  clerk  of  Monterey  County,  in 
order  that  all  the  facts  in  the  case  might  come  before  the  court.  This 
affidavit  explains  fully  the  manner  in  which  the  vote  of  the  county  was 
canvassed,  and  tlie  change  which  the  clerk  afterward  made.  After  the 
canvass  wascompleted  the  board  adjourned  sine  die.  The  affidavit  then 
proceeds  to  state  what  subsequently  occurred,  as  follows : 

At  tbe  time  the  boaixl  adjourned,  as  aforesaid,  the  vote  stood  on  the  tabulated  state- 
ment kept  by  the  said  clerk  at  San  Lorenzo  precinct,  P.  D.  Wiggiuton,  29,  and  forthe  said 
P.  D.  Wigginton  in  the  county,  988:  that  about  one  hour  after  the  adjournment  of 
said  board,  and  before  the  pencil-minutes  and  tabulated  statement  kept  by  the  clerk 
had  been  transcribed  to  the  minutes  of  said  board,  Mr,  St.  John,  a  member  of  said 
board,  returned  to  the  office  and  stated  to  me  that  he  thought  a  mistake  had  been 
made  in  the  vote  for  Congressman  ;  that  Mr.  Scott  and  Mr.  Carter  only  had  986  votes 
for  Mr.  Wigginton.  We  looked  over  the  figures  which  I  had  "made  and  found  that 
they  liad  been  added  correctly.  I  then  gave  to  Mr.  St.  John  a  copy  of  my  figures  of 
the  vote  for  Congressman,  and  .suggested  to  him  that  he  compare  the  same  with  the 
figures  of  the  vote  as  the  same  had  been  keep  by  Mr.  Scott,  and  said  that  he  would  in 
that  way  find  out  whei'e  or  in  which  precinct  the  difference  was,  and  if  there  was  a 
mistake  we  would  correct  it  in  the  morning. 

After  supper  that  night  I  wrote  up  the  minutes  and  transcribed  the  statement  made 
in  pencil  to  the  minute-book.  On  the  morning  of  November  14,  Mr.  J.  W.  Leigh  and  my- 
self wore  in  the  clerk's  office,  Mr.  St.  John  came  in  and  stated  to  me  that  the  difference 
in  the  figures  was  in  San  Lorenzo  precinct.  I  got  the  tally-list  ft-om  San  Lorenzo 
precinct  and  Mr.  St.  John,  Mr.  Leigh,  and  myself  examined  the  same.  We  found  that 
Mr.  Wigginton  had  only  received  27  votes,  wherea^s  the  tabulated  statement  and  the 
minutes,  as  they  stood  then,  had  allotted  to  Mr.  Wigginton  29  votes  in  .said  precinct. 
The  tally-list  was  in  all  respects  regular.  The  27  was  in  marks  in  figures  twice  and 
written  twice. 

We  all  three  felt  fully  convinced  that  Mr.  Wigginton  had  received  in  the  precinct 
only  27  votes,  and  the  clerk  had  made  a  mistake  in  putting  down  29.  I  then  and  there 
changed  the  vote  as  entered  on  the  minutes  fom  29  to  27,  and  the  total  vote  from  988 
to  98t>,  and  thereafter  and  on  the  same  day  the  chairman  of  said  board  signed  the  min- 
utes. 

This  statement  is  not  merely  the  affidavit  of  the  clerk.  It  is  embod- 
ied in  the  petition  of  Mr.  Pacheco,  signed  by  him,  and  verified  by  his 
own  oath.  Hence,  so  far  as  this  contest  is  concerued,  we  may  assume 
the  truth  of  the  facts  above  stated.  These  facts  show  that  the  result  as 
certified  by  the  clerk  was  not  the  result  ascertained  and  declared  by 


24  DIGEST    OF    ELECTION    CASES. 

the  board  of  canvassers.  The  persons  named  in  the  above  statement, 
Messrs.  Scott,  Carter,  and  Leigh,  were  not  members  of  the  board  of 
canvassers,  and  the  canvass  made  by  the  clerk  and  Mr.  St.  John  was 
without  the  semblance  of  law,  and  proves  only  the  fraudulent  conduct 
of  the  clerk  in  the  premises.  The  statement  of  the  clerk  that  "  we  all 
three  felt  fullv  convinced  that  Mr.  Wigginton  had  received  only  27 
votes  "  in  San  Lorenzo  precinct  does  not  avail  anything.  The  canvass- 
ing-board  had,  under  their  official  oaths,  ascertained  the  result  to  be 
otherwise.  And  the  majority  ol]the  board,  Messrs.  Gordon  and  Blanken- 
ship,  afterwards  made  oath  that  the  alteration  by  the  clerk  was  made 
wihhout  authority  of  law  or  knowledge  of  the  board,  and  after  the 
board  had  adjourned  ;  that  the  board  had  ascertained,  in  triitli  and  in 
fact,  that  Mr.  Wigginton  had  received  29  votes  in  said  precinct  instead 
of  27,  and  so  declared,  and  that  the  returns  made  by  the  clerk  were 
false  and  untrue.  The  affidavits  of  Gordon  and  Blankenship  are  not 
cited  to  prove  the  truth  of  their  canvass.  The  result  ascertained  by 
the  board  imports  absolute  verity,  and  cannot  be  impeached  except  by 
evidence  t^aken  in  a  contest  under  the  statute. 

The  undersigned  is  therefore  of  the  opinion  that  in  Monterey  County 
the  contestant  is  entitled  to  have  counted  for  him  988  votes,  as  ascer- 
tained and  declared  by  the  board  of  canvassers  of  said  county. 

In  reference  to  the  votes  of  Pratt  and  Methvin,  the  undersigned  is  of 
the  opinion  that  the  former  was  a  non-resident  of  the  precinct,  and  that 
he  voted  for  the  contestee,  and  that  Methvin  was  a  non-resident  of  the 
State,  and  that  he  voted  for  the  contestant.  But  as  these  voters  would 
not  change  the  result  it  is  not  necessary  that  their  cases  should  be  fur- 
ther considered. 

WILLIAM  M.  SPRINGER. 


Mr.  Wait,  from  the  Committee  of  Elections,  submitted  the  following 

as  the 

VIEWS    OF    THE   MINORITY. 

The  grounds  upon  which  the  contestant  claims  the  seat  in  this  case 
being  fully  stated  in  the  report  of  the  majority,  it  is  unnecessary  to  re- 
peat them  here. 

And  the  majority  having  reported  that  the  vote  as  certified  to  the 
secretary  of  state  from  Monterey  County  shall  in  this  case  be  counted 
as  certified,  viz,  for  Pacheco,  1,208,  and  for  Wigginton,  986,  we  fully 
concur  with  the  majority  in  that  regard,  and  will  not,  therefore,  further 
notice  that  branch  of  the  case. 

All  that  is  left  for  consideration  is  as  to  the  matter  of  illegal  votes 
cast  for  these  parties  respectively,  and  in  order  that  the  House  may 
have  the  ca«e,  as  it  now  stands,  conveniently  before  it,  we  state  that  by 
the  returns  of  the  election  the  vote  of  the  district  stands  as  follows : 

For  Pacheco 19,104 

For  Wigginton 19,103 

Majority  for  Pacheco 1 

The  majority  of  the  committee  report  that  the  following-named  jiersons 
voted  illegally  for  Pacheco:  F.  W.  Hottman,  F.  W.  Kelly,  Pedro  Paris, 
I.  Dieos  Ortegas,  Charles  Waterman,  Moses  Atkinson,  T.  B.  Lanhardt, 


WIGGINTON    VS.    PACHECO.  25 

James  Quails,  Juan  Paris,  Pedro  Ortegas,  Charles  Gilbert,  I.  C.  Scott, 
and  consequently  that  this  number  of  votes  shall  be  deducted  from 
Pacheco's  vote  above  stated.  We  cannot  concur  with  the  majority  so  far 
as  the  followiug  are  concerned,  viz :  Charles  Watterman,  Moses  Atkin- 
son, Charles  Gilbert,  I.  C.  Scott. 

These  four,  who  are  by  the  majority  decided  to  be  illegal  voters,  we 
insist  are  not  shown  to  have  been  such,  and,  therefore,  their  votes  should 
not  now  be  rejected.  We  therefore  proceed  to  present  the  facts  as  to 
each. 

CHARLES  WATTERMAN. 

The  evidence  touching  this  voter  is  as  follows  (page  33) : 

Robert  S.  Jenkins,  being  called  as  a  witness  for  contestant,  was 
sworn,  and  testified  as  follows : 

Direct  examination : 

Question.  What  is  yonr  name,  age,  and  place  of  residence  T — Answer.  Robert  8.  Jen- 
kins ;  tifty-seven  years ;  Maytield,  Santa  Clara  County. 

Q.  How  long  have  yon  resided  in  Mayfield  T — A.  Five  or  six  years. 

Q.  Do  you  know  a  man  by  the  name  of  Charles  Watterman  who  formerly  resided  iiL 
or  near  Mayfit-hl  ?— A.  I  do. 

Q.  Dill  lie  vote  at  the  election  in  Maytield  on  the  7th  day  of  November,  1876  ? — A. 
He  did. 

Q.  How  do  you  know  ? — A.  I  was  present  at  the  time  that  he  voted.  I  challenged 
him,  on  the  ground  that  he  was  a  non-resident  of  the  county. 

Q.  State  anything  you  may  know  pertinent  to  the  inquiry  as  to  Charles  Watterman's 
residence  at  the  time  of  said  election,  and  for  the  twelve  months  next  preceding. — A. 
He  had  resided  here  for  a  number  of  years ;  had  left  this  place,  sold  his  interest  here, 
and  went  to  Oregon.  He  came  here  the  morning  of  the  election,  after  being  absent,  as 
nigh  as  I  can  remember,  six  or  eight  months.  He  came  to  the  polls  and  was  challenged 
by  me.  He  swore  his  vote  in,  and  left  that  same  day  on  the  train.  He  has  been  here 
twice  .since. 

Q.  Do  you  know  where  he  was  living  on  the  7th  day  of  November,  and,  if  so,  how 
long  had  he  been  living  there  T — A.  From  conversation  with  him  he  had  been  to  Ore- 
gon and  other  places,  and  came  back  here  to  vote. 

Q.  Do  you  know  whether  he  voted  for  Congressman  at  that  election ;  if  so,  for 
•whom  t — A.  He  took  the  Republican  ticket  and  voted  it  entire.  I  can't  say  whether 
he  altered  it  or  not. 

Q.  Did  you  ever  hear  him  say  which  ticket  he  voted  that  day,  and  whether  he  voted 
for  WiggintonorPacheco? — ^A.  He  told  me  in  conversation  that  he  voted  the  Repub- 
lican ticket. 

Q.  Did  you  on  that  dav  see  the  Repnblican  tickets  that  were  being  used  for  voters? — 
A.  I  did.  ' 

Q.  Whose  name  was  on  that  ticket  for  Congressman  T — A.  Romualdo  Pacheco. 

Q.  Whose  name  was  on  the  Democratic  ticket  for  Congressman  ? — A.  P.  D.  Wig- 
ginton. 

Cross-examination : 

Q.  What  is  your  business  f — A.  I  am  a  saloon  keeper  in  Maytield. 

Q.  For  how  long  a  time  have  you  been  so  ? — A.  Two  or  three  years. 

Q.  What  are  your  politics,  and  how  did  you  vote  at  the  election  on  the  7th  of  No- 
vember last  f — A.  Voted  the  full  Democratic  ticket,  including  Wigginton  for  Congress. 

Q.  How  long  have  you  known  Charles  Watterman  ? — A.  Five  or  six  years  certainly; 
may  be  longer. 

Q.  Was  he  a  single  man  f — A.  Yes. 

Q.  When  you  speak  of  his  selling  his  interest  here,  what  do  you  mean  ? — A.  He  sold 
his  interest  in  the  hotel  business  ;  said  the  people  of  Mayfield  might  go  to  thunder. 
He  wanted  nothing  more  to  do  with  them,  and  left  here.  That  is  as  near  as  I  can  re- 
member. 

Q.  Was  he  on  the  great  register  when  he  left  T — A.  He  was. 

Q.  Do  you  know  where  he  went,  and  in  what  business  engaged  ? — A.  He  took  a  con- 
tract to  go  with  a  circus,  and  did  go  through  this  State  and  in  Oregon,  as  he  told  me. 

Q.  Did  he  come  back  to  Maytield  f — A.  No,  sir ;  he  never  came  back  until  the  day 
of  election. 

Q.  Will  you  swear  that  Charles  Watterman  was  not  in  Mayfield  two  or  three  months 
before  the  election,  and  that  he  was  not  here  one  whole  week  immediately  preceding. 


26  DIGEST    OF    ELECTION    CASES. 

the  election  f — ^A.  To  the  best  of  my  knowledge,  he  was  not  here  until  the  day  of  elec- 
tion. 

Q.  Do  you  know  what  his  post-office  address  was  during  his  absence  T — A.  I  do  not. 

Q.  Was  his  name,  at  any  time  after  leaving  Mayfield,  canceled  on  the  great  regis- 
ter t— A.  Not  that  I  know 'of. 

Q.  Do  you  know  of  his  having  voted,  or  of  his  having  his  name  on  the  great  regis- 
ter of  any  other  county  than  this  one  T — A.  I  knew  of  it  one  year  before.  His  name 
was  on  the  great  register  in  Sau  Mateo  County.  He  was  transferred  to  the  register 
of  this  county  the  year  before,  when  he  received  the  Republican  nomination  for  road- 
master,  and  told  me  he  had  always  voted  in  San  Mateo  County,  and  only  because  he 
was  nominated,  and  five  or  six  months  afterward  entered  into  the  hotel  business  at 
Mayfield. 

Q.  Do  you  know  whether,  after  selliug  out  the  interest  in  the  hotel,  he  had  any 
permanent  residence  other  than  Mayfield  ? — A.  I  don't  know ;  he  said  he  left  this  town 
for  good. 

Q.  Do  you  swear  that  that  la  the  exact  language  he  used  ? — A.  As  near  as  I  can  re- 
member. 

Q.  Who  was  present  when  this  conversation  took  place  f — A.  Can't  say  who. 

Q-  Will  you  say  that  any  one  was  present  ? — A.  Yes,  sir ;  a  number  were  present. 

Q.  And  you  can't  remember  the  name  of  any  one  ? — A.  No. 

Q.  Did  you  make  any  note  or  memorandum  of  it  ? — A.  Not  at  that  time. 

Q.  Did  you  at  any  time  ? — A.  I  did  within  three  or  four  weeks  ago. 

Q.  Was  that  in  contemplation  of  this  contest  ? — A.  No,  sir. 

Q.  Have  you  any  ill-feeling  or  prejudice  against  Mr.  Watterman? — A.  No,  sir;  I 
threatened  to  have  him  arrested  for  false  voting. 

Q.  How  long  was  it  before  the  election  that  the  conversation  above  related,  as  to 
his  leaving,  took  place  ? — A.  It  must  be  more  than  four  or  five  months  before  the  elec- 
tion. I  believe  he  left  here  in  January,  and  never  returned  until  day  of  election,  as 
far  as  I  know. 

Q.  When  was  your  memory  refreshed  in  regard  to  this  conversation  t — A.  On  elec- 
tion day  particularly. 

Q.  Have  you  spoken  much  about  it  to  others  ? — A.  Nothing  more  than  to  others 
when  I  said  the  election  had  been  carried  by  fraud,  by  importing  five  or  six  men. 

Q.  Did  you  challenge  his  vote  on  election-day  ? — A.  I  did. 

Q.  Was  he  sworn  to  answer  questions? — A.  He  was  sworn. 

Q.  Was  he  asked  the  question  as  to  where  his  residence  was  at  that  timet — A.  I 
think  he  was,  but  don't  remember. 

Q.  If  you  don't  remember  these  important  facts,  how  do  you  remember  so  minutely 
the  convert.ation  with  Watterman  as  to  his  leaving,  which  took  place  some  ten  months 
before  the  election? — A.  The  way  I  remember  it  so  particularly  is  this :  they,  the  peo- 
ple, told  me  that  if  I  challenged  him  I  would  get  a  thrashing,  as  he  was  a  very  mus- 
cular, smart  man.  I  said  it  didn't  matter  what  or  who  he  is,  I  wiU  challenge  him  and 
be  prepared  for  him.  I  challenged  his  vote ;  he  turned  to  me  and  asked  if  [  challenged 
him ;  I  said  yes ;  he  turned  and  swore  his  vote  in,  and  it  was  received  by  decision  of 
a  majority  of  the  judges;  whether  they  all  voted  for  it  I  don't  know. 

Q.  Was  the  challenge  submitted  to  the  board  of  election  ? — A.  It  was. 

Q.  Was  it  voted  upon  by  them? — A.  It  was;  and  they  received  the  vote. 

[Respondent  here  moves  to  strike  out  all  that  portion  of  the  above  and  foregoing 
testimony  relative  to  the  residence  of  Charles  Watterman,  upon  the  ground  that  when 
his  vote  was  opened  the  same  was  challenged  on  the  ground  of  his  being  a  non-resi- 
dent; that  said  Watterman  was  sworn  to  answer  questions  concerning  his  residence; 
the  said  challenge  was  submitted  to  the  board  of  election,  voted  upon  by  them,  the 
challenge  denied,  and  vote  of  said  Watterman  received;  that  the  action  of  said  board 
in  determining  the  right  of  said  Watterman  to  vote,  and  his  residence,  was  final  and 
conclusive ;  and  that  the  question  of  his  residence  cannot  now  be  inquired  into,  the 
challenge  not  having  been  upon  any  other  grounds.] 

Q.  W  ill  you  swear  that  when  Watterman  voted  he  voted  for  Pacheco  for  Congress- 
man, and  that  that  name  was  not  scratched? — A.  I  can't  swear  to  that. 

Q.  Will  you  swear  that  he  did  not  vote  for  Wigginton  for  Congress  ? — A.  I  won't 
swear  that  he  did  or  did  not. 

Charles  Ducker,  witness  (p.  39): 

Question.  How  long  have  you  lived  in  Santa  Clara  County,  at  Mayfield? — Answer. 
About  seven  years. 

Q.  Do  you  know  a  person  named  Charles  Watterman,  fornierly  a  resident  of  May- 
field? — A.  Yes,  sir. 

Q.  Where  were  you  on  the  7th  day  of  November.  1876,  during  the  general  election 
onthiitday? — A.  I  was  here  ju  Mayfield. 

Q.  Did  Charles  Watterman  vote  at  that  election,  and  where? — A.  Yes,  sir;  in 
Mayfield. 


WIGGINTON   VS.    PACHECO.  27 

Q.  How  do  you  kuow  the  fact  of  his  votiug  ' — A.  I  saw  him  put  in  the  ballot. 

Q.  State  anything  that  you  know  relative  to  the  place  of  residence  of  Watterman 
at  the  time  of  that  election,  and  for  a  year  before. — A.  I  couldn't  state  much  about  his 
residence  the  year  before.  He  was  living  in  Mayfield  until  some  time  in  the  spring 
of  the  year  1876.  Somewhere  in  March  or  April  he  told  me  he  was  going  to  San 
Francisco.  He  was  up  here  at  that  time  buying  some  harnesses  and  horses  to  start 
out  with  Montgomery  Queen's  circus.  That  is  the  last  I  see  of  him  in  Mayfield  until 
the  day  of  election. 

Q.  Were  you  living  in  Mayfield  during  the  whole  of  the  intervening  time  ? — A. 
Yes,  sir. 

Q.  How  long  did  Watterman  stay  here  after  the  day  of  election  f 

(Respondent  objects  to  the  (juestion  as  irrelevant  and  immaterial.) 

A.  He  went  away  the  day  of  election. 

Q.  Do  you  know*  where  he  went  ? — A.  I  do  not.  He  went  on  the  afternoon  train 
north. 

Q.  Do  you  know  where  he  was  living  on  the  7th  day  of  last  November ;  if  so,  how 
long  had  he  been  living  tiiere  f — A.  He  was  here  on  that  day. 

Q.  Did  you  have  any  conversation  with  him  as  to  where  he  lived  ? — A.  Xo,  sir. 

Q.  Do  you  kuow  whether  he  voted  for  Congressman  at  that  election ;  if  so,  for 
whom  ? — ^A.  I  do  not.  I  didn't  see  his  ticket.  They  said  he  voted  for  the  Republican 
ticket  and  Pacheco  for  Congressman. 

(Respondent  moves  to  strike  out  the  latter  part  of  the  last  and  foregoing  answer  as 
mere  hearsay.) 

Q.  Do  you  know  whether  he  took  the  Republican  or  Democratic  ticket  to  the  polls  T 
— A.  I  do  not. 

Q.  Did  you  ever  have  any  conversation  with  him  about  whom  he  vot-ed  for f — A. 
No,  sir. 

Q.  Do  you  know  whether  Mr.  Watterman  sold  out.  when  he  left  here  in  March  or 
April,  1876  ? — A.  I  do  not. 

Q.  Did  he  ever  tell  you  he  sold  out  f — A.  He  did  not.  I  didn't  know  he  had  any 
interest  here. 

On  cross-examination,     (p.  41.) 

Q.  What  is  your  business? — A.  Saloon  and  grocery-store  in  Mayfield. 

Q.  How  long  have  you  been  eno;aged  in  that  business  f — A.  Seven  years  in  Mayfield. 

Q.  Was  Charles  Watterman  a  single  man  * — A.  To  the  best  of  knowledge  he  is. 

Q.  How  long  have  you  known  him  around  Mayfield  T — A.  As  long  as  I  have  been 
here;  six  or  seven  years. 

Q.  Do  you  know  of  his  voting  in  Mayfield  before  the  last  election  t — A.  Yes;  he 
voted  here  before  this  last  election. 

Q.  Do  you  kuow  of  his  having  voted  in  any  other  place  than  Mayfield  since  you 
have  known  him  ? — A.  I  do  not. 

Q.  What  has  been  his  business  since  you  have  known  him  f — A.  The  first  I  knew  of 
him  he  kept  a  livery-stable.  He  kept  teams;  hired  out  teams.  One  time  he  kept  a 
liotel.  After  that  I  do  not  kuow  that  he  ever  did  anything  iu  Mayfield.  He  was 
here. 

Q.  Did  he  travel  about  with  Montgomery  Queen's  circus  1 — A.  So  I  understood.  He 
told  me  himself  that  he  was  going;  he  was  going  to  drive  a  wagon;  that  he  was  a 
wagon-master. 

Q.  Do  you  know  whether  he  had  his  own  teams  with  himt — A.  I  do  not. 

Q.  Do  you  know,  after  his  leaving  Mayfield,  in  March  or  April,  of  his  having  voted 
anywhere  elseT — A.  I  do  not. 

Q.  Will  you  swear  that  Watterman  voted  for  Pacheco  for  Congressman? — A.  No, 
sir;  I  could  npt  swear. 

Q.  Will  you  swear  that  he  did  not  vote  for  Wiggiuton? — A.  No,  sir;  I  could  not 
swear.     He  might  vote  a  blank  for  all  I  know. 

Q.  Do  you  know  of  Watterman  having  taken  up  his  residence,  after  he  left  May- 
field,  in  any  other  place  f — A.  He  claimed  Mayfield  to  be  his  residence. 

J.  L.  McKiBBEN,  called  as  a  witness  by  contestant,  being  sworn,  tes- 
tifies as  follows : 

By  Mr.  Maloxe  : 

Question.  What  is  your  name,  age,  and  present  place  of  residence? — Answer.  J.  L. 
McKibben;  age,  40;  reside  in  Mayfield. 

Q.  Where  were  you  living  on  tlie  7th  of  November  last,  and  what  position  did  you 
holil  in  connection  with  the  general  election  held  on  that  day  ? — A  Lived  at  Mayfield 
precinct.     Was  one  of  the  judges  of  election  for  that  precinct. 

Q.  How  long  have  you  resided  in  Mayfield  ? — A.  I  believe  about  nine  years. 

Q.  Do  you  know  Charles  Watterman'? — A.  Yes,  sir. 


28  DIGEST    OF    ELECTION    CASES. 

Q.  Were  you  present  and  acting  as  one  of  the  judges  in  Mayfield  precinct  during 
the  whole  of  the  day  of  the  7th  of  November  last? — A.  I  was. 

Q.  Did  Charles  VVattermau  A'ote  on  that  day  ? — A.  Yes ;  to  the  best  of  my  recollec- 
tion. 

Q.  Where  was  he  residing  at  that  time  and  prior  thereto  I — A.  That  is  a  question  I 
could  not  answer.  He  used  to  live  in  Mayfield  :  knew  him  here  ior  a  number  of  years; 
about  town  all  the  time,  three,  four,  or  five  years,  maybe  longer.  Has  not  been  her© 
all  the  time ;  he  had  not  been  here  continuously  for  a  year  before  the  election  ;  don't 
know  where  he  had  been. 

Q.  Was  his  vote  challenged  on  that  day ;  if  so,  by  whom  and  on  what  ground  f — A. 
To  the  best  of  my  knowledge  his  vote  was  challenged.  I  don't  know  by  whom,  there 
were  so  many  challenged.  I  can't  say  positive  what  the  ground  of  the  challenge  was^ 
but  to  the  best  of  my  knowledge  it  was  that  he  had  not  been  a  resident  of  the  pre- 
cinct for  thirty  days.     The  challenge  was  denied. 

Q.  Can  you  say  if  at  any  time  during  the  year  preceding  the  election,  November  7, 
1876,  Charles  Watterman  gave  ui»  his  residence  in  Mayfield  ? — A.  No,  sir  ;  I  cannot. 

Q.  When  Atkinson  and  Watterman  were  sworn  at  the  time  they  were  challenged^ 
did  they  swear  that  they  were  residents  of  Mayfield  ? — A.  I  think  they  did,  or  they 
would  not  have  been  allowed  to  vote ;  they  might  have  claimed  this  as  their  resi- 
dence. • 

Q.  How  did  you  vote  on  those  two  challenges  t — A.  I  do  not  recollect  whether  I 
voted  on  those  two  or  not.  Two  of  the  judges  generally  did  the  voting ;  the  inspector 
and  one  of  the  judges. 

Q.  Did  not  you  vote  on  all  the  challenges  that  were  made  ? — A.  I  do  not  think  I 
did. 

J.  L.  McKIBBEN. 

A.  L.  Ladd  was  duly  sworn  and  examined  by  Jno.  T.  Malone,  esq., 
for  the  contestant. 

(Counsel  for  the  respondent  liere  interposes  the  same  objection  made  to  testimony 
of  Scott,  Ducker,  and  McKibben.) 

Question.  What  is  your  name,  age,  and  place  of  residence,  and  how  long  have  you 
lived  at  your  present  pla  ceof  residence  T — Answer.  My  name  is  A.  L.  Ladd ;  age,  about 
36  years;  reside  in  Mayfield,  in  Santa  Clara  County ;  have  lived  here  since  1863. 

Q.  Do  you  know  Charles  Watterman  ?  If  so,  how  long  have  you  known  him  ? — A. 
I  have  known  him  about  six  years. 

Q.  Do  you  know  if  he  ever  resided  in  Mayfield;  and,  if  so,  when  did  he  leave  May- 
field,  and  for  what  place,  if  you  know  T — A.  Yes,  sir  ;  he  has.  I  am  not  positive,  but 
I  think  he  left  on  the  15th  of  January,  1876.  The  reason  I  think  he  went  away  at 
that  time  is  that  we  were  partners,  and  he  sold  out  at  that  time ;  he  might  have  gone 
away  the  next  day.     I  do  not  know  where  he  went. 

Q.  Do  you  know  whether  he  ever  came  back  to  Mayfield  to  live  before  the  7th  of 
November,  1876  ? — A.  I  did  not  see  him.  Not  to  live,  unless  you  call  coming  to  spend 
the  day  coming  to  live. 

Q.  How  long  had  you  been  partners  ? — A.  From  iibout  the  Ist  of  October,  1875. 

Cross-examination  by  Mr.  Wilson  : 

Q.  What  is  your  business  1 — A.  At  the  present  time  I  am  waiting  for  business. 
Have  nothing  to  do. 

Q.  How  long  had  you  known  Watterman  in  Mayfield  T— A.  I  have  known  him  four 
years  sure. 

Q.  Was  he  a  single  man  T — A.  Yes,  sir. 

Q.  When  he  left  Mayfield  in  January,  1876,  did  you  hear  him  express  any  ill-feel- 
ing toward  the  people  of  Mayfield  ? — A.  I  do  not  think  I  spoke  to  him  after  I  bought 
him  out. 

Q.  When  he  left  Mayfield,  in  January,  1876,  did  you  hear  him  express  any  ill-feeling 
toward  the  people  of  Mayfield  ?— A.  No  ;  I  did  not. 

Q.  Would  you  have  been  likely  to  have  heard  him  if  he  had  so  expressed  himself? — 
A.  I  do  not  know  that  I  would. 

Q.  Did  you  ever  see  him  after  the  time  he  left  in  January  in  Mayfield  before  the 
election? — A.  Yes,  sir;  next  time  I  saw  him  he  was  with  Queen's  circus.  He  called 
at  the  house  and  took  a  drink  of  soda. 

Q.  Did  he  go  away  with  the  circus?— A.  Yes,  sir;  he  started  with  it. 

Q.  Do  you  know  whether  he  gave  up  his  residence  in  Mayfield  when  he  left  in  Jan» 
nary? — ^A.  No;  I  do  not. 

Redirect  examination  by  Mr.  Malone  : 

Q.  Do  you  know  whether  he  intended  to  come  back  to  Mayfield  when  he  left? — A* 
I  do  not. 

A.  L.  LADD. 


WIGGINTON    VS.    PACHECO.  29 

This  is  all  of  tlie  evidence  in  regard  to  this  voter,  and  we  submit  that 
the  conclusion  of  the  majority  as  to  him  cauuot  properly  be  sustained. 
He  had  resided  at  Maylield,  where  he  had  voted  for  several  years.  He 
was  a  single  man,  and  there  is  not  the  slightest  evidence  that  he  ever 
had  any  other  residence.  In  the  spring,  before  the  election,  he  took  em- 
ployment to  travel  with  a  circus,  aud  did  travel  with  it  during  the  sum- 
mer. Came  back  to  Maylield  on  the  day  of  the  election  and  voted. 
His  vote  was  challenged  and  the  challeuge  was  not  sustained.  There  is 
absolutely  nothing  to  indicate  any  purpose  on  his  part  to  change  his 
residence,  other  than  the  statement  of  a  witness  that  he  said  he  left  this 
towu  "for  good  "  when  he  went  with  the  circus  in  the  spring.  To  per- 
mit this  loose  kind  of  testimony,  an  attempted  repetition  of  what  a  per- 
son said  eighteen  months  before,  to  have  the  effect  to  disfranchise  a 
voter,  aud  perchance  to  determine  the  right  to  a  seat  in  the  House  of 
Representatives,  will  not  do.  Such  a  precedent  or  rnle  can  only  work 
mischief.  Such  testimony  is  considered  by  courts  and  authors  to  be 
the  most  unreliable  and  least  worthy  of  consideration,  and  for  reasons 
which  are  too  familiar  to  need  to  be  repeated  here.  Waterman,  as  before 
stated,  was  challenged  as  a  voter.  He  was  sworn  and  interrogated 
touching  his  right  to  vote.  He  knew  where  his  residence  was,  what  his 
intentions  were  when  he  weut  away  with  that  circus,  and  upon  his 
sworn  statements,  coupled  with  the  fact  that  notoriously  he  had  been  a 
resident  there  for  years,  his  vote  was  received.  Now,  it  is  proposed  by 
the  majority  to  say  that  that  was  an  illegal  vote,  with  no  other  evidence 
to  warrant  it  than  the  statement  of  a  witness,  made  eighteen  months 
after  he  professed  to  have  heard  it,  that  Waterman  said  about  the  time 
he  went  away  with  the  circus  that  he  was  going  "for  good." 

If  this  man's  vote  can  be  held  to  be  illegal,  it  will  be  the  declaration 
of  a  principle  that  will  practically  disfranchise  hundreds  of  men  who 
temporarily  leave  their  homes  to  follow  i)ursuits  requiring  them  to  travel 
from  place  to  place.  Such  men  habitually  go  home  to  vote,  especially 
at  Presidential  elections.  They  will  travel  hundreds  of  miles  to  exer- 
cise that  privilege,  and  are  too  honest  to  vote  where  they  cannot  legally 
do  so.  This  is  manifestly  one  of  this  class  of  cases,  and  there  are  others 
like  it  which  appear  in  this  record.  William  Pratt  or  G.  C.  Pratt,  which- 
ever the  name  is,  is  a  case  of  like  character.  With  all  due  respect  for 
the  majority,  we  are  constrained  to  say  that  the  statement  of  the  facts 
of  this  case  made  in  their  report  comes  far  short  of  warranting  the  con- 
clusion that  he  was  an  illegal  voter. 

The  majority  says  he  "had  left  Mayfield  six  or  eight  months  before 
the  election."  Suppose  he  had;  is  that  inconsistent  with  the  fact  that 
Mayfield  continued  to  be  his  residence?  And  they  say  that  he  said 
"he  had  no  business  there;  that  he  had  another  situation,  and  was 
going  to  leave;  he  was  absent  in  another  county."  That  other  situa- 
tion, it  appears,  was  that  he  went  over  into  the  woods  to  work  in  a 
mill.  Suppose  he  did  ;  does  that  show  that  he  abandoned  his  residence 
at  Mayfield  ?  The  next  day  after  the  election  he  went  away.  One  wit- 
ness says  he  told  him  he  was  going  home,  East ;  another  that  he  said 
he  was  going  to  Iowa.  His  name  was  on  the  great  register.  His  vote 
was  challenged.  He  was  sworn  as  to  his  place  of  residence,  and  the 
board  decided  that  he  was  a  competent  voter. 

We  insist  that  his  vote  should  not  be  rejected. 

CHARLES  GILBERT. 

The  majority  report  that  Charles  Gilbert  should  be  rejected  as  an 
illegal  voter.  From  this  conclusion  we  dissent.  He  voted  in  Poway 
precinct,  and  it  is  claimed  that  he  voted  for  Pacheco. 


30  DIGEST    OF    ELECTION    CASES. 

We  here  present  the  House  with  all  the  evidence  in  regard  to  this 
voter. 

Page  28  of  Record : 

Frederick  Reetzke,  being  first  sworn,  testifies  : 

Qnestion.  What  is  your  name,  age,  occupation,  and  place  of  residence  ?- Answer. 
F.  Reetzke;  age,  forty-three;  apiarian:  Vallecito,  Poway  precinct,  county  of  San 
Diego,  California. 

Q.  Do  you  know  Charles  Gilbert? — A.  Yes,  sir. 

Q.  State,  if  you  know,  what  ticket  he  voted  at  the  last  general  election  held  in 
Poway  precinct,  November  7,  1876.— A.  Gilbert  always  told  me  he  was  a  Republican. 
He  asked  me  which  were  the  Republican  tickets.  He  took  one,  folded  it  up,  and,  to 
my  honest  belief,  he  put  it  in. 

Q.  Do  you  mean  that  he  took  a  Republican  ticket?— A.  Yes,  sir. 

Q.  Did  this  occur  on  that  election-day? — A.  Undoubtedly. 

Q.  In  what  precinct  did  it  occur  ?— A.  Poway  precinct,  San  Diego,  County,  Cali- 
foraia. 

Q.  Was  Romualdo  Pacheco's  name  on  tbe  Republican  tickets  in  that  precinct  as  a 
candidate  for  Representative  in  Congress? — A.  It  was  on  the  ticket  I  voted  and  on 
the  ticket  I  showed  Gilbert. 

Q.  When  Gilbert  asked  you  which  were  the  Republican  tickets,  did  you  give  him 
one  with  the  name  of  Romualdo  Pacheco  on  it,  and  is  that  the  one  which,  in  your  hon- 
est opinion,  you  think  he  voted? — A.  The  two  bunches  of  tickets  were  lying  close  to 
each  other  on  the  same  desk.  I  didn't  give  him  one ;  I  only  showed  him  the  Republi- 
can ticket  with  Pacheco's  name  on  it ;  he  took  it,  folded  it  up,  and,  to  my  honest  belief, 
voted  it. 

Q.  State,  if  you  know,  where  he  resided  at  the  time  of  that  election,  and  where  he 
had  been  residing  for  the  thirty  days  immediately  preceding  that  election. — A.  At 
Alvah  Mitchell's  house. 

Q.  State,  if  you  know,  whether  Alvah  Mitchell's  house  was,  at  the  time  of  said 
election,  in  said  Poway  precinct. — A.  It  was  not. 

Cross-examined  by  Mr.  Hendrick,  for  respondent : 

Q.  Can  you  swear  positively  that  Gilbert  voted  the  Republican  ticket,  or  a  ticket 
with  Romualdo  Pacheco's  name  on  it? — A.  I  was  there  before  Gilbert  came;  I  showed 
him  the  ticket  with  Pacheco's  name  on  it,  and  he  took  it,  folded  it  up,  and  I  did  not 
see  him  take  another  before  he  voted. 

Q.  Are  you  sure  that  the  name  of  Pacheco  was  on  the  ticket  which  Gilbert  took? — 
A.  Yes,  sir. 

Q.  Will  you  swear  positively  that  Pacheco's  name  was  on  the  ticket  that  Gilbert 
voted? — A.  No,  sir;  I  will  not  swear  positively  to  anything  of  that  kind;  but  to  my 
honest  belief  it  was. 

Q.  How  do  you  know  that  Mitchell's  house  was  not  in  the  Poway  precinct  ? — A.  The 
township  line  divides  the  precincts,  and  I  know  where  the  township  line  runs.  I  saw 
it  surveyed. 

Q.  What  precinct  had  Alvah  Mitchell  been  in  the  habit  of  voting  in  previously  ? — 
A.  Poway.  f 

Re-direct  by  Mr.  Leach  : 

Q.  State  whether  or  not  you  were  present  on  that  election-day  when  Mr.  Alvah 

Mitchell  offered  to  vote  in  that  precinct. — A.  I  was  present  when  he  offered  his  vote. 

Q.  State  whether  his  vote  was  accepted  or  refused  by  the  election  board  of  that 

precinct. — A.  I  know  they  refused  it,  although  I  did  not  hear  them.     The  board  knew 

that  Gilbert  gained  his  residence  under  Mitchell's  roof. 

FRED,  reetzke. 

Subscribed  and  sworn  to  before  me  this  19th  day  of  July,  1877. 

WILL  J.  HUNSAKER, 

Noiat'y  Public. 

James  Anderson,  being  first  duly  sworn,  testifies : 

Question.  What  is  your  name,  age,  occupation,  and  place  of  residence? — Answer. 
My  name  is  James  Anderson;  my  age  is  fifty- four;  justice  of  the  peace;  Poway,  San 
Diego  County,  California. 

Q.  Were  you  a  member  of  the  election-board  of  Poway  precinct  at  the  general  elec- 
tion held  November  7,  1876? — A.  I  was  clerk. 

Q.  State,  if  you  know,  where  Charles  Gilbert  resided  at  the  time  of  that  election, 
and  for  thirty  days  immediately  prior  thereto. — A.  He  resid*^  at  the  house  of  Alvah 


WIGGINTON    VS.    PACHECO.  31 

Mitchell,  but  was  occasionally  in  the  Vallecitos,  about  four  miles  east  of  Mitchell's, 
staying  with  Mitchell  and  Reetzke. 

Q.  State,  if  you  know,  whether  the  house  and  home  of  Alvah  Mitchell,  to  which  you 
have  referred,  was  in  said  Poway  precinct  at  the  time  of  said  election  or  not. — A.  I 
know  nothing  further  than  that  it  was  ruled  by  the  electiou-boardof  Poway  precinct 
that  it  was  not  in  the  precinct. 

Q.  State,  if  you  know,  whether  the  vote  of  said  Alvah  Mitchell  was  refused  by  that 
election-board  on  that  election-day ;  and,  if  so,  for  what  cause  ? — A.  I  saw  the  vote 
refused,  for  the  reason  assigned  by  the  board,  that  Alvah  Mitchell  did  not  live  in  the 
precinct  of  Poway. 

Q.  State,  if  you  know,  what  were  Mr.  Alvah  Mitchell's  politics. — A.  Democratic. 

Q.  What  are  your  politics? — A.  I,  sir,  am  a  decided  Democrat. 

C  ross-examiued  by  Mr.  Hendrick,  for  respondent: 

Q.  Are  you  an  old  resident  of  Poway  precinct  ? — A.  Nearly  sixteen  years  I  have  re- 
sided iu  Poway  psecinct. 

Q.  About  how  far  from  the  precinct  line  is  Mitchell's  house  situated? — A.  I  cannot 
say  how  far ;  we  never  questioned  his  right,  because  in  the  country  a  mile  or  two 
never  barred  a  man  from  voting  under  the  former  rule.  The  board  was  not  furnished 
with  scales  to  determine  where  each  man's  house  was  situated. 

Q.  Does  the  precinct  map  show  whether  Mitchell's  house  is  in  the  Poway  precinct 
ornot?~A.  I  do  not  know. 

Q.  Can  you  swear  positively  that  no  portion  of  Mitchell's  house  or  improvements 
were  in  Poway  precinct? — A.  If  you  will  refer  to  my  testimony  you  will  find  that  I 
etatfd  that  I  did  not  know  where  the  line  was;  in  direct  answer,  I  will  state  that  I 
do  not  know. 

Q.  Had  Mitchell  ever  voted  in  the  Poway  precinct  before? — A.  Yes,  sir;  as  Poway 
precinct  was  at  the  time  he  voted.     They  have  been  modifying  the  precincts  lately, 

JAMES  ANDERSON. 

Subscribed  and  sworn  to  before  me  this  July  19,  1877, 

LSEAL.]  WILL  J.  HUNSAKER, 

Notary  Public. 

Now,  we  submit  that  this  is  not  sufficient  to  prove  non-residence. 
True,  Mr.  Mitchell's  house  was  not  in  the  precinct.  But  this  is  not  suffi- 
cient to  prove  residence  at  Mitchell's  house.  The  rule  of  law  on  this 
subject  is  this: 

Nor  has  the  mere  statement  by  a  witness  that  a  voter  was  or  was  not  a  resident, 
without  giving  facts  to  justify  his  opinion,  been  considered  sufficient  to  throw  out  such 
a  vote.  The  testimony  shows  a  numVier  of  instances  where  a  witness  would  state  pos- 
itively the  residence  or  non-residence  of  a  voter  on  some  theory  of  his  own,  or  some 
mistake  of  fact,  when  other  testimony  would  show  with  entire  clearness  that  the  vote 
was  legal. 

What  constitutes  a  legal  residence  is  generally  imperfectly  understood 
by  witnesses.  It  is  not  sufficient  for  a  witness  to  say  that  a  man  resides 
in  this  or  that  place,  but  facts  should  be  given  to  show  that  the  place 
named  was  the  actual  legal  residence.  It  is  very  easy  for  witnesses  to 
mistake  the  place  where  a  man  may  be  staying  temporarily  for  his  ac- 
tual residence;  or,  in  other  words,  to  speak  of  the  place  where  he  may 
be  temporarily  at  work  as  his  residence,  his  home,  or  where  he  lives. 
This  kind  of  evidence  is  not  and  never  should  be  regarded  as  sufficient 
to  prove  a  man  an  illegal  voter,  and  hence  we  contend  that  this  evi- 
dence is  wholly  insufficient  to  prove  Gilbert  to  have  been  an  illegal 
voter. 

Again,  this  evidence  does  not  prove  that  Gilbert  voted  for  Pacheco. 
The  substance  of  the  evidence  is  that  he  associated  with  Mitchell,  a 
Democrat;  that  he  took  a  Eepublican  ticket  and  folded  it  up,  and  the 
witness  says  he  honestly  believes  he  voted,  although  no  witness  testi- 
fies that  he  did  vote. 

The  logic  of  the  majority  on  this  subject,  in  respect  of  this  vote,  is, 
to  say  the  least,  singular.  There  is  an  evident  feeling  that  the  proof  is 
weak  and  needs  propping  to  make  it  stand,  and  this  singular  argument 


32  DIGEST    OF    ELECTION    CASES. 

is  presented:  "The  coutestaiit  could  not  prove  how  the  voter  voted  any- 
better,  except  by  calling-  him  as  a  witness;  but  if  he  called  him  as  a 
witness,  he  was  not  bound  to  testify  for  whom  he  cast  his  vote;  if  he 
could  not  be  compelled  to  answer,  he  need  not  be  called."  Then  the 
majority  proceed  to  say:  "But  Mr.  Pocheco  might  have  called  the  voter, 
and  if  he  did  iiot  claim  his  privilege,  he  could  have  made  it  clear  for 
whom  he  did  vote."  And  not  having  called  him,  the  inference  is  drawn 
that  Gilbert  would  have  corroborated  the  witness  whose  deposition  is  in 
the  record.  It  is  unnecessary  to  comment  on  this.  It  is  quite  as  fair 
to  infer  that,  from  the  fact  that  contestant  did  nat  call  Gilbert,  he  knew 
that  Gilbert  would  not  corroborate  the  other  testimony  as  to  residence 
or  voting,  and  it  is  certainly  quite  as  incumbent  on  the  contestant  to 
produce  the  voter  as  a  witness  as  upon  the  contestee ;  more  so,  indeed, 
for  on  the  contestant  rests  the  onus. 

Hence  we  say  that  there  should  not  be  deducted  from  Pacheco  a  vote 
on  account  of  Charles  Gilbert. 

MOSES  ATKINSON. 

The  majority  pronounce  Moses  Atkinson  to  have  voted  illegally  for 
Pacheco.  From  this  we  dissent,  and  here  present  to  the  House  the  evi- 
dence that  relates  to  him. 

Evidence  of  Jenkins,  p.  34 : 

Q.  State  anything  you  know  about  the  residence  of  Moses  A.  Atkinson,  on  and  be- 
fore the  election  in  last  November.  State,  also,  if  yon  know,  whether  he  voted  at  that 
election  for  Congressman;  and,  if  so,  for  whom? — A.  He  was  a  resident  of  San  Mateo 
County  for  the  last  one  or  two  years  before  the  election.  He  rented  land  and  lived 
there.  He  voted.  I  think  I  challenged  his  vote.  He  voted  the  whole  Republican 
ticket  from  stem  to  stern.    He  has  always  said  so. 

Q.  State  anything  you  know  about  the  residence  of  Joseph  Dickenson  on  and  before 
the  7th  of  last  November,  and  also  if  he  voted  at  said  election ;  if  so,  what  ticket? — A. 
He  left  here  about  eight  months  before  the  election  and  went  to  Soledad,  in  Monterey 
County;  resided  there  eight  months.  He  came  back  to  San  J036  about  two  weeks  be- 
fore the  election.  He  came  here  about  a  week  before  the  election,  and  voted  the  Re- 
publican ticket,  saying  at  the  same  time  that  Tilden  would  be  elected. 

Q.  Do  you  mean  to  say  that  Moses  Atkinson  was  at  no  time  a  resident  of  this 
county  ? — A.  He  was  a  resident  in  this  county  three  or  four  years  ago  (p.  37.) 

Q.  Where  did  he  go  to? — A.  San  Mateo. 

Q.  What  is  his  business  ? — A.  He  is  a  hay-presser  and  farmer. 

Q.  From  the  time  he  left  this  country,  three  or  four  years  ago,  has  he  never  returned 
to  Mayfield  t — A.  He  has  been  here  to  work :  that's  aU. 

Q.  How  do  you  know  that  he  did  not  make  his  home  in  this  county  ? — A.  Because 
he  was  living  in  San  Mateo  County. 

Q.  Is  he  a  single  man  ? — A.  Yes,  sir. 

Q.  Where  was  he  living  in  San  Mateo? — A.  He  was  farming  in  San  Mateo  County, 
and  his  house  was  just  on  the  other  side  of  the  creek,  which  is  the  boundary-line  be- 
tween the  two  counties. 

Q.  How  long  was  he  farming  there? — A.  Two  or  three  years;  he  was  a  renter.  No 
part  of  the  farm  is  in  Santa  Clara  County. 

Q.  Who  owned  the  land f — A.  Jeremiah  Clark. 

Q.  When  was  the  last  time  Atkinson  was  in  this  county  before  the  election? — ^A. 
He  comes  here  trading  most  every  day. 

Q.  Will  you  swear  that  he  was  not  residing  in  this  precinct  thirty  days  before  the 
election? — A.  I  swear  that  he  was  not  residing  in  this  county  within  thirty  days  be- 
fore the  election  in  November  last. 

Q.  Was  he  renting  land  of  Jeremiah  Clark  in  the  months  of  October  and  November, 
1873?— A.  He  was. 

Q.  How  did  you  know  that  ?— A.  He  told  me  so  himself;  that  he  had  leased  the  land 
for  two  or  three  years. 

Q.  Do  you  know  whether,  in  the  months  of  October  and  November,  1876,  he  was 
renting  or  farming  in  Santa  Clara  County  ? — A.  He  was  not. 

Q.  Did  he  rent  any  of  Clark's  land  that  was  in  Santa  Clara  County  ?— A.  Not  that  I 
know  of. 


WIGGINTON    VS.    PACHECO.  33 

Q.  Oil  wliat  jiioiiud  di<l  you  cliallen;;e  bis  vote  ? — A.  On  the  ground  of  non-ie.sideuce 
lu  till'  county. 

C^.  Was  his  name  on  the  great  register? — A.  I  suppose  it  was.     • 

i;.  WhLMi  he  was  challenged,  was  he  sworn  to  answer  questions  as  to  residence? — ^A. 
He  was,  of  course. 

Q.  Was  the  challenge  put  to  the  hoard  of  eleetiunsf — A.  It  was,  and  they  decided 
to  receive  it,  and  he  voted. 

As  to  Moses  Atkinson,  Charles  Ducker  testifies,  on  p.  41 : 

i}.  state,  if  anything,  what  you  know  about  the  residence  of  Moses  Atkinson  on  and 
before  the  election  in  la^t  November,  aiul  if  you  know  whether  he  voted  in  Mayfield 
at  that  election  for  Congressman;  and,  if  so,  for  whom? — A.  He  lived  over  across  the 
creek,  in  San  Mateo  County.  Must  have  lived  there  all  of  two  and  a  half  years  before 
tlie  election.  He  voted  at  tlie  election  in  Maytield.  I  could  not  tell  whether  he  voted 
for  Congressman  or  not.  I  did  not  see  his  ticket.  I  challenged  Atkinson.  He  said 
he  voted  the  Republican  ticket  all  the  time. 

Q.  Did  you  see  the  Republican  ticket  used  at  that  election  ;  if  so,  whose  name  was 
upon  it  ? — A.  Yes,  sir;  Pacheco. 

«.i>.  Do  you  know  what  occupation  Atkinsou^followed  at  and  prior  to  that  time?  If 
^ii.  state. — A.   Farmer;  also  he  used  to  go  out  hay-baling. 

Q.  Where  did  he  farm  ? — A.  In  San  Mateo  County. 

i;.  Will  you  swear  that  Moses  Atkinson  was  residing  in  San  Mateo  County  in  the 
months  of  September,  October,  and  November,  IS76? — A.  He  was  at  his  ranch  there, 
hut  he  left  about  the  time  of  election;  he  was  down  baling  hay  in  this  county. 

Q.  How  long  was  he  baling  hay  here  in  this  county  before  election  ? — A.  I  don't 
know:  he  might  have  been  here  three  or  four  weeks;  may  be  longer. 

Q.  Do  you  know  whether  he  still  retained  his  interest  in  the  ranch  in  San  Mateo 
County  ? — A.  Not  to  certainty;  I  believe  so;  yes,  he  had  his  interest  at  that  time. 

Q.  H(jw  do  you  know  ? — A.  On  the  night  of  election  he  told  me  so.  Told  me  he 
lived  on  the  ranch,  but  he  claime<l  his  residence  in  Mayfield,  because  he  slept  more  in 
Maytield  than  on  the  ranch. 

(j>.  Where  diil  he  sleep  in  Mayfield  f — A.  At  the  hotel,  he  told  me. 

Q.  Do  you  know  of  his  keeping  his  horses  here  in  Mayfield? — A.  No,  sir;  he  kept 
them  on  the  ranch. 

Q.  Are  you  sure  you  challenged  Moses  Atkinson  ? — A.  Yes,  sir. 

Q.  .Mr.  Jenkins  did  not  challenge  him,  did  he  ? — A.  No,  sir. 

Q.  On  what  ground  was  he  challenged  by  you? — A.  That  he  was  not  a  resident  of 
This  county. 

Q.  Was  he  sworn  to  answer  questions  concerning  his  residence  ? — A.  I  could  not 
"•wear  positively  whether  he  was  or  not. 

Q.  Do  you  think  he  was  sworn? — A.  I  could  not  tell  without  retlection. 

Q.  Was  the  challenge  submitted  to  the  board  of  election  ? — A.  It  was. 

Q.  What  was  their  decision  ? — A.  The  challenge  was  denied,  and  his  vote  was  re- 
ceived. 

(Kespondent  moves  to  strike  out  all  of  the  above  and  foregoing  testiiuouy  of  Charles 
Ducker  relative  to  the  residence  of  Moses  Atkinson,  on  the  ground  that  the  decision 
of  the  board  in  denying  the  challenge  and  the  receiving  of  the  vote  was  final  and  con- 
Insive  as  to  the  residence  of  Moses  Atkinson,  the  challenge  having  been  made  upon 
!  he  sole  ground  of  non-residence,  and  no  allegation  of  fraud  on  the  part  of  the  board 
having  been  made.) 

Q.  Will  you  swear  that  Moses  Atkinson  voted  for  Pacheco  for  Congressman  on  the 
Tth  of  November  last  ? — A.  No. 

Q.  Will  you  swear  that  Atkinson  did  not  vote  for  Wigginton  for  Congressman? — 
A.  No,  sir. 

Redirect  examination : 
Q.  You  stated,  in  answer  to  a  question  in  cross-examination,  that  you  could  not 
swejir  positively  that  Moses  Atkinson  was  sworn  to  answer  questions  by  the  board  of 
election.     Why  do  you  doubt  that  he  was  ? — A.  Just  that  it  comes  into  my  mind  that 
the  judges  decided  the  matter  without  his  being  sworn. 

As  to  this  voter,  E.  C.  Scott  testifies  as  follows,  pp.  43,  44,  45: 

By  Mr.  Maloxe  : 

Question.  What  is  yonr  name,  age,  and  place  of  residence  f — Answer.  E.  C.  Scott ; 
age,  153;  residence,  San  Mateo  County. 

Q.  Do  you  know  a  man  by  the  name  of  Moses  A.  Atkinson  ?  If  so,  how  long  have 
you  known  him  ? — A.  I  do  ;  have  known  him  three  or  four  years,  perhaps  longer. 

Q.  State,  if  you  know,  where  he  resided  at  and  iirior  to  the  7th  of  November,  1876, 

H.  Mis.  58 3 


34  DIGEST    OP    ELECTION    CASE8. 

and  bow  loiij?  he  had  resi»led  at  his  then  idace  of  residence;  what  hisotcupation  was, 
and  whether  he  voted  for  Cougresvsuian  at  the  fjeueral  election  held  on  that  day  :  and 
where,  if  yon  know-. — A.  His  home  was  in  San  Mateo  Connty ;  there  is  where  his  land 
was.  and  where  he  oenerally  made  it  his  home.  He  was  a  renter  ;  his  land  was  about 
two  miles  frou)  Muyiield,  across  the  creek :  the  creek  is  the  boundary-line  between 
San  Mateo  and  Santa  Clara  Counties.  He  bad  been  living  there  two  years.  I  think, 
that  I  know  of.  He  told  me  he  voted ;  he  didn't  tell  me  particularly  for  who.  I  think 
he  said  he  voted  in  Mayfield.  He  did  not  tell  me  what  ticket  he  voted ;  his  occupa- 
tion is  what  I  call  farmer ;  he  goes  about  baling  hay. 

Q.  Do  you  know  anything  else  pertinent  to  the  matter  of  Mr.  Atkinson's  qualifica- 
tions to  vote  in  Santa  Clara  County  on  the  7th  of  November,  1876  ? — A.  I  do  not. 

Cro8.s-exami nation : 

Q.  What  is  your  business  ? — A.  Farmer. 

Q.  How  far  do  you  live  from  Atkinson  ? — A.  Not  over  a  mile  and  a  half,  I  think. 

Q.  Is  Atkinson  a  single  man  ? — A.  Yes,  sir. 

Q.  Who  lived  on  the  farm  with  him  ? — A.  During  1876  he  had  leased  his  farm  to  his 
brother  and  another  person  for  a  portion  of  the  crop.  He  told  me  he  had  rented  a 
part  of  it  to  his  brother  and  a  part  of  it  to  Mr.  Poole.  Did  not  tell  me  whether  he 
had  rented  the  whole  of  it  or  not. 

Q.  AVho  put  in  the  crops  of  1875  and  1876? — A.  His  brother  and  Mr.  Poole. 

Q.  Was  Atkinson  living  there  then  ? — A.  A  portion  of  the  time  he  would  be  there. 
He  worked  awhile  here  in  Santa  Clara  County  in  the  spring  of  1876,  after  leasing  the 
place  to  his  brother,  with  Mr.  Coutts,  teaming. 

Q.  How  long  was  he  teaming  for  Sir.  Coutts? — A.  I  do  not  know;  it  might  have 
been  a  month,  or  thereabouts. 

Q.  Then  where  did  he  work  ? — A.  Then  he  worked  awhile  on  the  Mount  Hamilton 
road,  in  this  county — about  a  month,  or  perhaps  longer.  Then  he  was  back  on  the 
ranch  in  San  Mateo  County,  and  has  been  there  ever  since,  to  the  best  of  my  knowl- 
edge, except  when  he  was  around  baling  hay.  He  was  out  baling  in  each  of  the 
counties  w^henever  he  could  get  work. 

Q.  Who  was  living  on  the  ranch  after  he  leased  it  to  his  brother  and  Mr.  Poole  ? — 
A.  His  brother  and  his  brother's  family  lived  there.  Mr.  Poole's  family  was  not 
there. 

Q.  After  Atkinson  returned  to  the  ranch,  in  the  fall  of  1876,  how  often  did  you  see 
him  between  that  time  and  the  election  ? — A.  I  could  not  say ;  I  might  have  seen  him 
a  half  a  dozen  or  a  dozen  times.     I  did  not  take  any  note  of  it. 

Q.  What  was  he  doing  there? — A.  Hewas  just  stopping  there.  There  was  nothing 
much  to  do  there  during  that  season  of  the  year. 

Q.  Do  you  know  that  he  was  not  in  Maytield,  engaged  in  the  business  of  teaming, 
in  the  months  of  September,  October,  and  November,  1876  ? — A.  I  do  not  know  that 
he  was. 

Q.  Do  you  know  that  he  was  not  ? — A.  I  do  not. 

Q.  Do  you  know  where  he  claimed  his  residence  ? — A.  I  do  not  know  as  I  ever  "heard 
him  say  where  he  did  claim  his  residence. 

Q.  Aiter  he  had  leased  the  farm  to  his  brother,  did  he  have  anything  to  do  with  the 
management  of  it? — A.  Not  that  I  know  of. 

Q.  Do  you  know  of  his  having  horses  and  wagons? — A.  He  had  some  horses  and 
wagons. 

Q.  Do  you  know  whether  he  left  the  horses  and  wagons  on  the  ranch  after  he  leased 
it  to  his  brother? — A.  No;  I  can't  say  that  he  did.  I  do  not  know  where  he  kept 
them. 

Q.  Were  yon  in  Mayfield  very  often  ? — A.  Not  very  often.  I  was  in  once  or  twice 
a  week. 

Q.  During  the  fall  of  1876,  preceding  the  election,  when  you  came  to  Mayfield,  did 
you  ever  see  Atkinson  ? — A.  Yes,  sir. 

Q.  What  was  he  then  doing?— A.  I  can't  say,  in  the  fall.  He  had  a  barn  here.  I 
think  I  saw  him  and  his  horses  there  in  the  fall  or  late  in  the  summer.  I  believe  he 
bought  the  lot  and  put  up  the  barn  to  keep  his  horses  when  he  would  have  any  work 
to  do  here  in  town. 

Q.  "WTien  was  this,  in  reference  to  the  day  of  election  ? — A.  It  was  a  long  time 
before ;  about  three  months,  or  two  months. 

Q.  Was  he  living  in  Mayfield  then?— A.  I  think  he  was;  I  think  be  was  working 
here  or  had  been  working  here. 

Q.  How  long  did  he  live  here  in  Mayfield  at  that  time  ? — A.  I  can't  say. 

Q.  Can  you  say  whether  he  did  not  live  in  Mayfield  from  the  time  you  saw  him  in 
Mayfield  with  his  horses,  in  the  latter  part  of  the  summer  or  early  jiart  of  the  fall, 
until  election  day  ? — A.  I  can't  say  positively,  but  I  do  not  think  he  did.  He  might 
have  lived  here  in  Mayfield  two  or  three  months  before  the  election  and  I  not  have 
known  anything  about  it;  being  a  single  man,  he  might.have  called  this  his  home. 


WIGGINTON    VS.    PACHECO.  35 

Q.  Do  you  know  of  his  having  voted  in  San  Mateo  County,  ever? — A.  I  am  not 
sure,  but  I  think  he  voted  at  Meulo  Park,  in  San  Mateo  County,  once  a  year  ago; 
8ome  of  the  county  elections  there. 

Q.  Do  you  know  of  his  being  transferred  from  that  county  to  this? — A.  I  do  not 
know;  I  know  his  name  is  on  the  great  register  of  this  county. 

Q.  What  are  your  politics? — A.  Democratic.  Voted  for  the  Democratic  ticket  at 
last  election. 

E.  C.  SCOTT. 

This  is  all  the  evidence  as  to  Atkiusou. 

This  voter  had  lived  in  Mayfield ;  there  is  no  kind  of  doubt  about 
that.  A  year  or  two  before  the  election  he  had  rented  a  ranch  just  out- 
side Santa  Clara  County,  and  about  two  miles  from  the  place  where  he 
voted.  He  was  a  farmer  and  hay-presser.  He  was  almost  every  day 
in  Mayfield,  where  he  had  certainly  been  a  resident,  and  where  he 
claimed  his  residence  to  be.  The  majority  quote  paragraph  5,  section 
1239  of  the  statute  : 

5.  A  person  must  not  be  considered  to  have  gained  a  residence  in  auj'^  precinct  into 
which  he  comes  for  temporary  purposes  merely,  without  the  intention  of  making  such 
precinct  his  home. 

There  is  no  evidence  that  this  voter  came  into  this  precinct  for  tem- 
porary purposes.  If  it  proves  anything,  it  proves  that  he  went  out  of 
the  precinct  for  temporary  purposes,  and  that  under  the  law  does  not 
lose  him  his  residence;  and  although  he  was  farming  outside  the  pre- 
cinct he  claimed  the  precinct  to  be  his  place  of  residence.  He  was 
evidently  well  known.  His  vote  was  chgtllenged  on  the  ground  of  non- 
residence,  but  was  admitted. 

As  to  this  voter,  the  majority  of  the  committee  have  evidently  over- 
looked the  testimony  of  E.  C.  Scott.  He  testifies  that  in  1875  and  1876 
Atkinson  had  leased  to  his  brother  the  farm  that  lay  outside  the  county. 
This  witness  testifies : 

Q.  After  he  leased  the  farm  to  his  brother  did  he  have  anything  to  do  with  the 
management  of  it  ? — A.  Not  that  I  know  of. 

Q.  Do  you  know  of  his  having  horses  and  wagons? — A.  He  had  some  horses  and 
wagons. 

Q.  Do  you  know  whether  he  left  the  horses  and  wagons  on  the  ranch  after  he  leased 
it  to  his  brother  f — A.  No ;  I  can't  say  that  he  did.    I  do  not  know  where  he  kept  them. 

Q.  Were  you  in  Mayfield  very  often  ? — A.  Not  very  often  ;  I  was  in  once  or  twice  a 
week. 

Q.  During  the  fall  of  1876,  preceding  the  election,  when  you  came  to  Mayfield,  did 
you  ever  see  Atkinson? — A.  Yes,  sir. 

Q.  What  was  he  then  doing? — A.  I  can't  say,  in  the  fall.  He  had  a  barn  here  ;  I 
think  I  saw  him  and  his  horses  there  in  the  fall  or  late  in  the  summer ;  I  believe  he 
bought  the  lot  and  put  up  the  barn  to  keep  his  horses  when  he  would  have  any  work 
to  do  here  in  town. 

Q.  When  was  this,  in  reference  to  the  day  of  election  ? — A.  It  was  a  long  time  be- 
fore— about  three  months  or  two  months. 

Q.  Was  he  living  in  Mayfield  then  ? — ^A.  I  think  he  was;  I  think  he  was  working 
here,  or  had  been  working  here. 

Q.  How  long  did  he  live  here  in  Mayfield  at  that  time? — ^A.  I  can't  say. 

He  had  a  barn  and  kept  his  horses  in  the  precinct  where  he  voted. 
It  seems  to  us  that  this  evidence  is  wholly  insufficient  to  prove  Atkin- 
son an  illegal  voter. 

JOSEPH  A.   SCOTT. 

This  man  is  also  alleged  to  have  voted  illegally  for  Pacheco. 
William  Granger  testifies  (p.  72) : 

Q.  Were  you  present  at  the  said  polls  at  the  last  November  election  when  one  J.  A. 
Scott  oflered  his  vote? — A.  I  was,  and  challenged  his  vote;  there  were  others  that 
challenged  his  A^ote  at  the  same  time.  I  challenged  hiurf  on  the  grounds  that  he  was 
not  a  legal  voter  in  this  precinct ;  that  he  had  not  resided  in  the  precinct  thirty  days 


36  DIGEST    xjF    election   CASES. 

yiior  to  the  elrclion.  He  swoiv  that,  as  near  as  I  cau  uow  reineiuber.  it  was  not  thirty 
days  siiii-e  ho  Lad  last  come  liere ;  that  from  his  first  arrival  here,  coming  on  husiuess 
for  an  oil  company,  that  it  was  tliirty  days  or  over;  that  he  did  not  know  positively 
that  this  would  be  his  place  of  residence,  but  had  intended,  although  not  certain  of 
his  intentions,  that  he  would  make  this  his  place  of  residence,  as  he  was  subject  to 
orders  from  the  company  which  he  I'epresented. 

Q.  Did  he  or  not  state  upon  that  examination  that  he  did  not  bringhis  family  until 
upon  his  second  visit  or  return  to  this  place  f — A.  I  believe  he  did. 

Q.  Who  voted  himf — A.  I  cannot  at  present  call  the  names  of  those  who  seemed  to 
control  him,  but  it  was  the  same,  or  near  the  same,  crowd  that  was  endeavoring  to 
bnlldoze  the  votei-s  that  day. 

D.  C.  Scott  testifies  (pp.  77,  78) : 

D.  C.  Scott,  being  first  by  me  duly  .sworn,  deposes  and  says  as  follows,  to  wit : 

Qne8ti<ni.  Do  yon  reside  in  Ventura  precinct,  county  of  Ventura;  if  so.  bow  long  ? — 
Answer.  1  do,  since  a  year  ago  last  May,  1876. 

Q.  Do  yon  know  .).  A.  Scott? — A.  Yes,  sir. 

Q.  Do  you  know  whether  or  not  his  residence  was  in  Ventura  precinct  for  thirty 
days  prior  to  the  7th  of  November,  1876? — A.  He  came  here  on  the  17th  day  of  Octo- 
ber, ld7t),  to  make  his  residence. 

Q.  State  if  yon  know  where  was  .J.  A.  Scott's  place  of  residence  immediately  before 
he  came  to  .said  Ventura  precinct. — A.  Andrew's  Station,  or  Lyons  Station,  Los  Ange- 
les County,  California. 

Q.  Were  you  present  at  the  polls  of  Ventura  precinct  at  the  election  of  the  7th  of 
November  last  ? — A.  Yes,  sir. 

Q.  Did  J.  A.  Scott  offer  to  vote  at  that  election? — A.  Ye.s,  sir. 

Q.  Was  his  vote  challenged;  if  so,  upon  what  grounds  ? — A.  His  vote  was  challenged 
by  several  i»arti<'s;  one  objection  was  that  he  had  just  been  registered,  and  the  other 
was  that  they  knew  when  he  came  here.  1  remember  what  was  .said.  He  swore  his 
vote  in. 

(The  above  (juestion  and  answer,  .so  far  as  relates  to  his  ottering  his  vote  and  chal- 
lenging his  vote,  objected  to  as  incompetent.) 

Q.  Do  you  know  who  voted  Mi-.  J.  A.  Scott  1 

(Objected  to  as  ii.competent  and  irrelevant  and  immaterial.) 

A.  Colonel  Heiues  and  W.  J.  Williams  are  the  only  ones  I  noticed  particular. 

y .  Were  those  persons  working  that  day  to  obtain  votes  for  J*Ir.  Wigginton  or  Mr. 
Pacheco  for  member  of  Congress? 

(Objected  to  for  the  same  reasons.) 

A.  For  Mr.  Pacheco. 

Q.  Do  yon  know  whether  Mr.  J.  A.  Scott  is  a  Republican  or  a  Democrat,  and  what 
ticket  he  voted  at  said  election  f 

(The  first  part  of  question  objected  to  for  the  same  reasons.) 

A.  He  is  a  Republican.     I  conld  not  swear  to  the  ticket.     I  did  not  see  it  put  in. 

Cross-examination : 

Q,  How  do  you  know  that  Colonel  Heiues  and  W.  J.  Williams  were  working  for 
Pacheco  ? — A.  I  heard  them  say  so  themselves ;  that  they  were  working  for  the  whole 
ticket,  the  Republican  ticket. 

Q.  You  say  that  J.  A.  Scott  came  here  on  the  17th  day  of  October,  1876.  Did  he 
bring  his  family  here  on  that  day  ? — A.  I  don't  think  he  did.  1  saw  his  name  on  the 
register.     If  he  did  not  bring  them  then  they  came  right  away  after. 

Q.  When  did  you  see  his  name  on  the  register  ? — A.  On  the  17tli  day  of  October,  the 
day  he  arrived. 

Q.  Haven't  you  seen  it  since  i — A.  I  saw  it  a  few  days  before  the  grand  jury  met.  I 
went  thereto  be  sure  what  day  it  was. 

Q.  Is  not  it  a  fact  that  you  are  swearing  by  the  register  ? — A.  I  was  there  at  the  hotel 
the  day  he  arrived.  I  know  it  to  be  the  17th  day  of  October  without  the  register,  but 
1  referred  to  that  to  make  sure. 

Q.  You  are  not  certain  whether  he  brought  his  family  with  him  at  that  time  or 
not,  are  you  ? — A.  No,  sir. 

Q.  He  has  been  to  work  here  ever  since  that  time,  has  he  not  ? — A.  Yes,  sir. 

Q.  He  was  here  before  that  time,  wasn't  he  T — A.  Yes,  sir. 

Q.  And  went  back  for  his  family,  didn't  he  ? — A.  He  came  here  August  26.  I  had 
orders  from  R.  C.  Page,  the  manager  at  that  time,  not  to  let  him  make  any  oil  in  Ven- 
tura County,  and  he  went  back  to  Lyons  Station ;  he  came  down  again  on  the  14th 
day  of  September,  and  it  was  not  decided  then  that  he  should  staj-  here ;  he  came 
back  again  about  the  17th  of  Octol»er  to  go  to  work ;  he  got  here  on  the  17th. 

(All  of  the  above  answer  that  relates  to  the  orders  of  the  company  or  R.  C.  Page,  in 
relation  to  J.  A.  Scott  not  being  allowed  to  make  any  oil,  and  so  forth,  is  objected  to 
as  not  resi»on»ive  to  the  question.) 


WIGGINTON    VS.    PACHKCO.  37 

Q.  How  lon^did  be  shiy  when  he  came  here  in  Aiii^nst  .' — A.   Three  diij's. 

i}.  Didn'r  he  aii]dy  for  leave  to  <^n  to  work  ?— A.  Yes,  sir. 

Q.  How  louif  (lid  he  stay  wlien  he  came  again  on  September  14  .'  —A.  Abont  two  or 
three  days.     I  don't  rennMnber  exactly. 

Q.  Didn't  he  ajijain  (m  that  occasion  seek  to  {jo  to  work  ? — A.  No,  sir.  There  was  a 
new  manaji;er  here  at  that  time,  and  he  had  not  di'<ided  then  who  should  come  here  to 
refine,  and  left  me  in  charjje  of  the  bnsine.ss  here  nntil  he  could  get  some  refiner.  It 
was  uot  decided  by  this  new  manager  whether  Scott  should  come  here  or  remain 
where  he  was. 

Q.  Will  von  swear  that  Mr.  Scott  was  not  at  that  time  trying  to  wet  here  to  retiue 
oil  t — A.  He  was  trying  to  get  to  come  here,  but  could  not  come  witliout  orders  from 
the  company. 

y.  But  he  was  here,  wasn't  he  '. — A.  He  would  ride  out  here  and  look  around,  and 
go  back  home  again. 

D.  C.  SCOTT. 

Witness  waives  the  reading  of  the  deposition. 

J.  A.  Scott  was  himself  called  as  a  witness,  aud  testified  as  follows 
(pp.  130,137): 

Question.  State  your  name,  age,  place  of  residence,  and  occupation — Answer,  ily 
name  is  Jos^-jdi  A.  Scott;  my  age,  forty-four;  my  residence  is  San  Buenaventura  ;  I 
am  refiner  of  oils,  and  .superintendent  of  the  California  Steam  Oil  Companv. 

Q.  When  did  you  conn^  to  San  Buenaventura  to  reside  f — A.  I  came,  with  the  int^Mi- 
tion  of  making  this  my  home,  on  the  14th  of  September,  1>!76. 

Q.  Has  this  been  your  home  ever  since  that  time  .' — A.  I  have  considered  it  so  ever 
since  that  time.  I  have  been  backward  and  forwanl  from  the  two  places  which  I 
have  in  charge;  one  of  them  is  at  Andrews  Station,  and  the  other  here. 

Cross-examination  : 

Q.  In  wluit  county  is  Audrews  Station  ? — A.  In  Los  Angeles  County. 

Q.  Where  was  your  residence  immediately  before  the  14th  of  September,  ly76  f — A. 
It  was  at  Lyons  Station. 

Q.  Is  Lyons  Station  near  Andrews  Station  in  Los  Angeles  County f — A.  Yes,  sir: 
one  mile  ajtart. 

Q.  How  long  had  yon  been  residing  there  with  your  family  before  the  14th  of  Sep- 
tember, lH76f — A.  I  resided  with  my  family  three  months  and  six  days. 

Q.  What  business  were  you  engaged  in  at  that  place? — A.  I  was  general  superintend- 
ent of  the  works  of  the  California  Steam  Oil  Works  Company  there  and  here  in  Sau 
Buenaventura.     I  also  treated  oils  there  the  same  as  I  do  now  here. 

Q.  Have  you  continued  in  that  employment  there  and  here  ever  since  and  np  to  this 
time  f — A.  I  have. 

Q.  Are  yon  keejdng  house  in  San  Buenaventura f — A.  I  am. 

Q.  How  long  have  you  been  housekeeping  in  this  place?— A.  It  was  early  in  No- 
vember, 187ij — about  the  5th  and  10th  of  November,  1876.  I  cs'm't  say  positively  what 
day. 

Q.  Jlight  it  not  have  been  later  than  the  10th  of  November,  between  the  10th  and 
the  l?/th  1 — A.  N>,  sir;  I  now  think  that  it  was  on  the  3d  of  November,  l'^7G,  that  we 
commenced  to  keep  house.     We  paid  rent  from  the  1st  of  November. 

Q.  Wher<^  was  your  family  living  np  to  the  :}d  of  November,  1870? — A.  They  were 
living  part  of  the  time  at  Lyons  Station  and  part  of  the  time  at  .San  Buenaventura. 

Q.  When  did  you  remove  your  family  from  Lyons  Station  to  reside  permanently  in 
>an  Buenaventura  ? — A.  I  first  brought  my  wife  and  family  in  the  early  part  of  August, 
187«i,  abont  the  10th,  J  think  ;  it  might  have  been  the  loth;  I  am  not  sure  about  the 
<late.  I  thought  at  that  time  that  I  might  perhaps  leave  them  here  and  make  this 
my  home,  but  I  concluded  to  return  with  them  for  a  week  or  so;  then  I  didn't  bring 
my  family  again,  I  think,  about  the  26th  of  October,  but  returned  myself,  September 
14,  to  secure  a  honse,  in  order  to  bring  my  family. 

Q.  During  all  this  time,  was  you  engaged  as  superintendent  of  the  company  you 
mentioned  in  that  business  at  Andrews  Station? — A.  I  wassuperinteudent  both  there 
and  here  during  this  time.     I  w.as  general  superintendent  at  both  places. 

Q.  Did  you  board  with  your  family  at  a  public  house  at  Andrews  .Station,  or  were 
you  housekeeping  while  there? — A.  We  were  boarding  at  a  public  house;  took  our 
meals  at  a  public  house  and  hired  a  cottage  where  we  roomed;  the  cottage  w».s  con- 
nected and  was  a  part  of  the  hotel  where  we  boarded. 

Q.  Did  yon  furnish  this  I'oom  yourself,  or  was  it  furnished  by  the  hotel-keeper? — A. 
The  room  was  furnished  by  the  hotel-keeper,  but  we  used  our  own  linen  and  bedding. 

Q.  Did  you  bring  any  furniture  (household  furniture)  to  this  place  from  your  home 
at  Andrews  Station,  when  you  rem  )ved  to  this  place  t — A.  None,  to  my  knowledge. 
Our  household  goods  were  .shipped  from  Los  Angeles  here  by  steamer. 


24807? 


38  DIGEST    OF    ELECTION    CASES. 

Q.  Of  how  niauy  did  your  family  consist  at  the  time  you  removed  to  San  Biienaven- 
turia f — A.  My  wife  and  one  boy. 

Q.  How  many  days,  if  you  can  i-ecoUect,  were  you  in  San  Buenaventura  with  your 
family  after  your  return  here,  and  next  before  jhu  went  to  housekeei)ing,  and  what 
house  did  you  stop  at  here? — A.  Well,  we  stopped  at  the  Occidental  Hotel;  think  my 
family  arrived  October  26,  and  I  arrived  with  them.  I  can't  remember  how  long  it 
was  before  I  returned  again  to  Lyons  Station. 

Redirect:  . 

Q.  You  say  your  furniture  was  shipped  direct  by  steamer  from  Los  Angeles  here- 
Had  you  been  keeping  house  in  Los  Angeles,  or  were  your  gooas  unpacked  in  Los  An- 
geles ? — A.  I  had  not  been  keeping  house,  nor  my  goods  unpacked.  They  were  just 
as  they  were  shipped  from  the  East,  and  as  they  were  laying  at  the  warehouse  in  Los 
Angeles. 

Q.  Prior  to  yon  and  your  family  commencing  to  keep  house  in  this  town,  on  or  abo^it 
the  3d  of  November,  1876.  your  wife  and  boy  had  been  boarding  at  hotels,  both  here 
and  at  Lyon?;  Station,  since  they  arrived  from  the  East,  have  they  not  ? — A.  We  were 
one  month  boarding  at  Los  Augeles,  at  the  Saint  Charles  Hotel,  and  the  balance  of 
the  time  we  boarded  at  hotels  at  Lyons  Station  and  here,  up  to  the  time  of  our  going 
to  keeping  house  here. 

Q.  Were  you  ever  registered  as  a  voter  in  Los  Angeles  Countj'  ? — A.  I  never  was : 
no,  sir. 

Q.  Were  you  on  the  great  register  in  any  county  but  this  since  you  came  to  this 
State  ? — A.  None,  to  mv  knowledge;  no,  sir. 

J.  A.  SCOTT. 

Deposition  of  E.  A.  Edwards. 

Question.  State  your  name,  age,  place  of  residence,  and  occupation. — Answer.  My 
name  is  E.  A.  Edwards;  I  am  thirty-three  years  of  age;  I  am  a  merchant,  and  reside 
in  San  Buenaventura. 

Q.  Are  you  acquainted  with  the  previous  witness,  J.  A.  Scott  ? — A.  I  am. 

Q.  When  did  yon  first  become  acquainted  with  him  ? — A.  I  think  it  was  the  early 
part  of  1W76;  the  winter  of  1876. 

Q.  Where? — A. 'At  Lyons  Station. 

Q.  When  did  you  tir.st  see  him  iii  this  town,  or  about  when? — A.  I  couldn't  tell  the 
month ;  I  think  that  he  was  first  here  the  early  part  of  the  summer  or  spring  of  1876. 

Q.  What  business  was  he  engaged  in,  if  any.  when  you  first  saw  him  here  ? — A.  He 
was  superintending  the  refinery  of  the  Star  Oil  Works  Company. 

Q.  The  same  company  that  he  is  now  employed  by  ? — A.  The  same. 

Q.  Do  you  know  of  his  looking  for  a  hoxise,  or  having  any  one  else  looking  for  a 
house  for  him  at  any  time  during  the  summer  of  1876?  If  so,  state  what  yon  know 
about  it. — A.  Some  time  during  the  latter  part  of  the  summer  of  1876 — I  think  it  was 
about  the  middle  of  August — he  was  here  with  his  wife,  stopping  at  the  Santa  Clara 
House,  and  I  asked  him  if  the  company  for  whom  he  worked  had  concluded  to  locate 
in  here.     He  said  that  it  had,  and  that  he  would  like  to  have  me  get  him  a  house. 

Q.  Do  you  know  anything  about  the  company  locating  in  here,  or  intending  to  do 
so.  from  anything  learned  from  any  member  of  the  company  ?  If  so,  state  what. — A 
Yes,  sir  ;  Mr.  Scotield,  one  of  the  members,  told  ine  that  they  would  put  Scott  here. 

Q.  Was  there  any  reason  assigned  by  Mr.  Scotield,  or  any  othermember  of  the  com- 
pany, Avhy  D.  S.  Scott  should  not  know  that  J.  A.  Scott  was  to  relieve  him  of  the 
charge  of  the  refinery  here? — A.  I  could  not  say  positively  that  any  member  of  the 
company  did;  all  expressions  about  that  emanated  from  J.  A.  Scott,  and  not  from  any 
member  of  the  companv  ;  I  think  so. 

E.  A.  EDWARDS. 

Here  we  have  presented  to  the  House  all  of  the  evidence  in  regard 
to  J.  A.  Scott.  He  was  on  the  great  register;  he  himself  should  know 
better  that  any  one  else  where  his  residence  was.  The  evidence  is  not 
sufficient  to  show  that  he  was  not  a  legal  voter;  and,  besides  this,  the 
evidence  does  not  show  for  whom  he  voted.  For  both  of  these  reasons 
his  vote  should  not  be  rejected  or  deducted  from  the  vote  for  Pacheco. 

The  minority  therefore  claim  that,  as  to  the  four  voters  the  testimony 
in  relation  to  whom  we  have  been  considering,  their  ballots  cannot  be 
rejected;  and  consequently,  instead  of  deducting  from  Pacheco  twelve 
votes,  as  reported  by  the  majority,  there  should  only  be  deducted  eight. 


WIGGINTON    VS.    PACHECO.  39 

ILLEGAL  VOTING  FOR   CONTESTANT. 

The  majority  concede  tbat  the  following-  persons  voted  illegally  for 
contestant,  viz  :  John  Doran,  John  Geddeus,  William  A.  Brophy,  Joseph 
Marks,  James  A.  Keys.  In  this  the  minority  concur,  so  that  there  are, 
by  the  unanimous  opinion  of  the  committee,  five  votes  to  be  deducted 
from  the  contestant  on  account  of  these  voters. 

But  the  nuijority  report  that  the  following-named  persons  did  not 
vote  illegally,  «S:c.,  for  contestant,  and  therefoie  that  no  deductions  shall 
be  made  from  his  vote  on  their  account,  viz:  Jesus  Yorba,  Thomas 
O'Mara,  Thomas  H.  Methvin,  George  M.  Clark,  Gustave  C.  Perret,  John 
Peterson.  In  this  the  minority  do  not  concur.  We  insist  that  these 
men  voted  illegally  for  contestant,  and  therefore  their  votes  should  be 
deducted. 

We  therefore,  for  the  convenience  of  the  House,  present  the  evidence 
as  to  each. 

Jesus  Yorha. 

As  to  this  man,  the  majority  concede  that  he  voted  illegally,  but  claim 
that  the  evidence  is  not  sufficient  to  provethat  he  voted  for  Wigginton. 
It  is  not  uecessary,  therefore,  to  insert  the  evidence  as  to  the  illegality 
of  his  vote  ;  we  will  therefore  only  produce  that  relating  to  the  person 
for  whom  he  voted. 

T.  J.  Daly  testified,  pp.  100,  101: 

Q.  Were  yon  a  voter  of  San  Diego  iu  last  November ;  if  so,  in  what  precinct  f — A. 
Yes,  sir ;  in  first  ward — Old  Town. 

Q.  If  you  know  whether  Jesus  Yorba  voted  on  7th  last  November  in  this  county,  tell 
where  he  voted. — A.  He  did,  at  first  ward  iu  this  city. 

(^>.  If  you  know  what  his  politics  were  at  that  time,  please  state  it. — A-  Democi'at. 

(^.  How  long  had  Yorba  been  a  resideutof  first  waid  precinct  on  the  7th  of  Novem- 
ber, ld76  ? — A.  He  had  been  iu  Old  Town  about  ten  or  twelve  day — first  ward. 

Q.  If  yon  ever  heard  him  say  auy thing  about  who  he  voted  for  for  Congressman  in 
this  district,  or  for  whom  he  intended  to  vote  for  for  Congressman,  please  state  all  he 
said  about  it. 

(Attorney  for  contestant  Wigginton,  E.  Parker,  objects  to  the  question  last  proposed, 
and  to  The  answer  which  is  intended  to  elicit,  for  the  reason  that  the  answer  would 
only  be  hearsay  testimony.) 

A.  I  never  heard  him  say. 

Q.  If  any  one  came  to  the  polls  with  said  Yorba  at  the  time  he  dejiosited  his  ballot, 
tell  who  he  was. — A.  Angle  Smith. 

Q.  What  was  Smith's  politics? — A.  Democrat. 

Q.  Whom  did  Smith  vote  for  for  Congressman,  do  you  know* — A.  I  do:  for  P.  D. 
Wigginton. 

Cross-examination : 

Q.  What  nationality  did  this  Jesus  Yorba  belong  to  ^ — A.  Native  of  California,  I  be- 
lieve. 

Q.  Where  was  he  residing  at  the  time  you  knew  him  ? — A.  Old  Town.  He  was  here 
on  business. 

Q.  How  long  had  you  known  hira  on  the  day  of  election,  7th  November,  1876  f — A. 
I  did  not  know  his  name  until  lie  came  to  vote.  I  had  seen  him  a  iti\v  days  before 
that  iu  San  Diego. 

Q.  Do  you  know  where  he  was  residing  at  the  time"' — A.  I  do  uot  know  positively, 
but  I  Think  at  Jos(5  Estadillo. 

Q.  To  what  political  party  does  Jos<5  M.  Estadillo  belong? — A.  He  is  a  Republican, 
but  did  not  consider  himself  a  voter;  he  claimed  to  be  a  citizen  of  Lower  California. 

Q.  Do  you  mean  by  that  that  he  did  not  vote  at  that  election  ? — A.  I  do  ;  he  did  not 
vote. 

Q.  What  oountrynuin  was  Jose  M.  Estadillo? — A.  A  Californiau. 

Q.  What  couutrvnian  was  Angle  Smith  ? — A.  Half-breed  American  and  Californiau. 

Q.  How  do  you  know  Angle  .Smith  voted  for  P.  D.  Wigginton  ? — A.  He  told  me  so. 

Q.  Is  that  the  only  way  you  know  ? — A.  He  was  electioneering  all  the  day  for  Wig- 
ginton. 


40  DIGEST    OF    El.ECTION    CASES. 

Q.  How  do  you  know  he  was  electionoeriug  all  tlie  day  for  Wiggiuton  ? — A.  Ho  told 
me  that  lie  would,  and  other  parties  told  me  that  ho  was. 

Q.  Theu  all  yon  know  about  his  vot'ng  for  P.  D.  Wiggintou  for  Congressman  No- 
vember 7,  1876,  is  what  you  have  heaixl  him  and  others  say  ' — A.  He  was  the  only  one 
who  told  me  so. 

Q.  Were  you  an  fifficer  of  that  precinct? — A.  I  was  an  election  othcer. 

Q.  Do  you  know  Yorba  ? — A.  I  do. 

Q.  Do  you  know  how  he  voted  for  Congressman  November  7187()? — A.  I  do  nor. 

Q.  What  nationality  does  he  belong  to? — A.  Native  Californian. 

Q.  Do  yon  know  from  common  report  how  the  native  Californians,  as  a  class,  voted 
in  tJie  fourth  Cfmgrcssional  district  of  Cal  ifornia  for  Congressman  November  7,  187(1  ? — 
A.  They  voted,  as  a  class,  lor  Govermu-  Pacheco. 

Q.  Did  you  or  did  you  not  take  an  active  or  prominent  part  in  the  election  which 
came  otf  7th  November,  1876,  in  first  ward  precinct? — A.  I  did  take  an  active  part. 

Q.  Do  you  consider  yourself  qnalitied  to  tell,  to  a  reasonable  certainty,  how  Jesus 
Yorba  voted  for  Congressman  at  that  election  ? — A.  I  do  not. 

Q.  Have  yon  an  opinion  as  to  liow  he  voted  ? — A.  I  have. 

i).  What  is  that  opinion  ? — A.  I  have  an  opinion,  ba.sed  on  report,  that  Yorba  voted 
for  Mr.  Pacheco. 

Q.  Do  you  know  that  the  native  Californians  generally  vote  for  one  of  their  own 
race  when  he  is  a  candidate  for  office  ? — A.  They  do. 

The  proof  is  that  he  was  a  Democrat  and  Mas  voted  by  Angle  Smith, 
a  strong  Democrat,  who  was  actively  supporting  "Wigginton,  and  elec- 
tioneered for  Wigginton  all  day .  According  to  all  rules  on  the  subject, 
this  would  be  sufficient  to  establish  that  he  voted  for  AVigginton.  Cer- 
tainly, according  to  the  ruling  of  the  majority  in  some  of  the  cases  pre- 
sented by  the  contestant,  it  is  amply  sufficient.  The  reason  given  by 
the  majority  for  holding  that  the  proof  will  not  warrant  finding  that  he 
voted  for  Wigginton  is  that  he  was  a  native  Californian,  and  it  is  asserted 
that  they  as  a  class  voted  for  Pacheco.  But  that  will  not  suffice,  for  it 
does  not  appear  that  they  as  a  class  are  Democrats.  If  that  were  clearly 
proven  the  proposition  would  not  be  without  some  force.  But  even  then 
it  is  fully  answered  by  the  fact  that  Angle  Smith,  who  was  a  Democrat, 
who  voted  for  Wigginton  and  electioneered  for  Wigginton  and  went  to 
the  i)olls  with  Yorba,  was  one  of  these  same  natives — a  half  breed 
American  and  Californian. 

This  is  an  illegal  vote  for  Wigginton,  and  should  be  deducted. 

George  M.  Clarh 

This  man  wrote  his  name  on  his  ballot  for  the  express  purpose  of 
imparting  hwioledge  of  the  fact  that  he  voted  that  particular  ballot.  It 
is  clear  that  under  the  statue  of  California  that  ballot  should  have  been 
rejected.     We  quote  the  statute.     Section  1207  : 

Skc.  1207.  When  a  ballot  found  in  any  ballot -hox  hcura  njMn  it  atuj  impn'uxiou,  device, 
color,  or  //((H(7,  or  is  folded  in  a  manner  to  designate  or  impart  Icnowledge  of  the  person  who 
rated  such  ballot,  it  must,  with  all  its  contents,  be  rejected. 

The  evidence  that  he  voted  for  Wigginton  is  distinct  and  emphatic. 
It  was  a  marked  ballot,  Clark  having  written  his  name  on  it,  so  that  it 
could  be  known  that  he  voted  it. 

The  following  uncontradicted  testimony  makes  these  things  clear: 

Q.  Do  yon  know  George  M.  Clark,  of  the  first  ward?— A.  I  do. 

Q.  Plea.se  state  whether  or  not  George  M.  Clark  voted  ac  the  fir.st  ward  precinct  in 
this  city  on  the  7th  NovemV)er,  1876, — A.  He  did. 

Q.  For  whom  did  he  vote  for  Congressman  ?— A.  For  P.  D.  Wigginton. 

Q.  If  there  was  any  mark  upon  his  ballot  at  the  time  he  voted  which  would  distin- 
guish it  from  other  ballots  after  it  Was  deposited  in  the  box,  please  .state  what  that 
mark  was. 

(Objected  to  l)y  attorney  for  Wigginton,  on  the  ground  that  it  presumes  that  the 
witness  know  whetliev  or  not  the  liallot  had  a  i»rivate  mark  on  it  at  the  time  it  was 
deposited  in  the  ballot-box,  and  on  the  ground  that  there  has  been  no  evidence  offered 


WIGGINTON    VS.    PACHECO.  41 

or  given  teudiiig  to  show  that  the  witness  possessed  any  such  knowle<lge  or  iuforma- 
tion,) 

A.  There  was;  his  name  was  written  on  the  bottom  of  the  ticket. 

Q.  If  Clark  said  anything  about  it  at  tlie  time  he  deposited  the  ballot,  tell  what  be 
said. — A.  He  did.  He  bad  come  to  the  polls  tAvo  or  three  times  to  vote,  and  when  near 
the  polls  James  McCoy  took  him  away;  he  came  again  just  before  the  polls  closed 
and  voted  ;  he  then  said  that  he  had  written  his  name  on  the  ticket  so  that  old  Jim  would 
Icnoic  that  he  had  )iot  roted  against  his  wishes. 

Q.  If  you  were  acting  in  anyotlicial  capacity  on  that  day,  please  tell  what  it  was. — 
A.  I  was;  I  was  one  of  the  judges  of  election. 

Thus  it  is  apparent  that  this  voter  put  this  mark,  his  name,  on  the 
ticket  for  the  express  purpose  of  imparting  Iniowledge  of  the  person  icho 
voted  it,  bringing  the  ease  exactly  within  the  provisions  of  the  statute 
above  quoted. 

But  the  majority  say  that  the  name  was  written  ou  the  face  of  the 
ballot.  Now,  read  again  the  statute  and  see  if  that  makes  any  difference. 
The  statute  is,  "when  a  ballot  found  in  any  ballot-box  bears  upon  it  any 
impression,"  &C.  It  makes  no  kiud  of  difference  w^here  that  impres- 
sion is  placed.  When  such  a  ballot  is  found  it  must  be  rejected.  If 
the  device  or  impression  were  upon  the  back,  as  would  seem  to  be  the 
interpretation  of  the  majority,  then  the  ticket  need  not  find  its  way  into 
the  box,  because  it  could  be  detected  or  seen  before  it  went  in  ;  but  it  is 
clear  that  no  matter  where  it  is  placed  on  the  ballot,  when  such  ballot 
is  found  it  is  to  be  rejected. 

But  the  majority  further  urge  that  there  is  no  evidence  that  this  bal- 
lot was  counted.  The  following  evidence  would  seem  to  settle  that 
(piestion  as  well  as  the  question  as  to  whom  he  voted  for : 

Deposition  of  T.  J.  Daley. 

Qnestiou.  Did  yoji  see  the  ballot  of  George  M.  Clark  deposited  in  the  ballot-box  at 
that  election  f  — Answer.  I  did. 

Q.  Did  you  at  that  time  see  any  private  mark  upon  that  ballot  by  which  it  could  be 
distinguished  from  other  ballots? — A.  I  did  not;  where  I  was  sitting  I  could  not  see 
into  the  ballot-box. 

Q.  Then  how  can  you  say  there  was  a  private  mark  upon  the  ballot  which  he  voted 
that  day  f — A.  After  the  polls  were  closed,  the  board  proceeded  to  count  the  votes.  A. 
I^.  Seeley,  the  inspector,  handed  the  ballots  to  me,  one  by  one,  as  one  of  the  judges  of 
the  election,  to  read  them  to  the  clerks;  in  reading  the  ballots,  one  was  handed  to  me, 
and  the  name  of  George  M.  Clark  was  written  on  the  bottom  of  it,  just  as  Clark  had 
said:  written  with  lead-pencil. 

Q.  Do  yon  know  of  your  own  knowledge  that  that  ballot  with  Clark's  name  upon  it 
was  voted  by  that  George  M.  Clark? — A.  I  only  know  what  he  said  when  he  voted; 
there  was  uo  other  ticket  with  his  name  on. 

Redirect  examination :  » 

Q.  Do  you  know  the  handwriting  of  George  M.  Clark,  who  voted  at  that  precinct  as 
al)ove  stated  ? — A.  I  do. 

Q.  Was  the  name  on  that  ticket  iu  his  own  handwriting? — A.  It  was. 
Q.  Who  was  voted  for  for  Congressman  on  the  ballot  upon  which  was  written  the 
name  of  George  M.  Clark  ? — A.  P.  D.  Wigginton. 

Q.  What's  the  politics  of  James  McCov  f — A.  Democrat. 

T.  J.  DALEY. 

It  seems  to  us  that  if  there  is  anything  plain  in  this  case,  it  is  that 
this  vote  was  cast  and  counted  for  Wigginton,  and  should  be  deducted 
and  voted  for  contestant. 

Thomas  O'Mara. 

This  man  evidently  had  no  right  to  vote.  He  procured  the  name  and 
inimber  of  another  person  on  the  great  register,  personated  that  person, 
and  voted  for  contestant. 


42  DIGEST    OF    ELECTION    CASES. 

The  following  is  the  evidence  (Becord,  page  149) : 

"William  W.  Robixsox,  being  duly  sworn,  says : 

Question.  How  long  have  yon  lived  in  the  city  of  Los  Angeles,  comity  of  Los  Ange- 
les, State  of  California? — Answer.  Eight  years  on  the  lotli  of  this  monlb. 

Q.  Were  you  at  the  polls  in  the  second  preciuct  of  the  city  of  Los  Angeles  at  the 
electicvi  of  Representative  in  Congress,  in  November,  1876,  while  the  votes  were  being 
cast  f — A.  I  was. 

Q.  Did  you  see  tfie  person  vote  who  gave  his  name  as  Thomas  O'Mara,  voting  num- 
ber 595a  on  the  great  register  of  Los  Angeles  County? — A.  I  did. 

Q.  Was  his  vote  challenged  ? — A.  It  was.     I  challenged  it. 

Q.  On  what  grounds,  and  for  what  reasons? — A.  On  the  ground  that  he  was  not  a 
citizen  of  the  United  States,  and  that  he  was  not  on  the  great  register;  that  he  was 
not  the  person  whose  name  he  was  voting. 

Q.  Was  his  ballot  received  by  the  board  of  election  f — A.  It  was. 

Q.  Why  did  you  challenge  his  vote  on  the  reasons  heretofore  stated? — A.  Because  a 
short  time  previously,  on  tlie  same  day,  he  was  in  tlie,county  clerk's  othce,  and  wanted 
the  county  clerk,  myself,  and  several  others  to  get  him  naturalized,  he  stating  that  he 
was  not  natnralieed,  but  that  he  had  served  in  the  Army,  and  bad  a  right  to  be  natur- 
alized ;  but  he  had  no  papers  to  show  that  he  had  served  in  the  Army.  The  county 
clerk  tolil  him  that  there  was  no  court  in  session,  and  that  he  cotild  not  be  natural- 
ized that  day.  He  also,  at  that  time,  gave  a  dilferent  name  from  that  under  which  he 
voted.  His  age  was  apparently  over  sixty,  while  his  age  on  the  great  register,  at  that 
date,  was  thirty- four,     I  mean  the  name  by  which  he  voted. 

Q.  Did  yon  hear  this  party  state  how  he  voted  or  intended  to  vote,  or  see  him  re- 
ceive the  ballot  which  he  voted? 

(Objected  to  by  Mr.  Ganahl  as  leading.) 

A.  He  told  Mr.  Potts,  myself,  and  othei-s,  while  in  the  clerk's  office,  and  afterward 
to  myself,  but  before  he  voted,  that  he  was  a  goml  Democrat,  and  wanted  to  vote  the 
Democratic  ticket.  He  carae  to  the  polls  with  his  ticket  direct  fi'om  a  stand  kept  by 
Mr.  Roeder,  a  Democrat,  who  afterward  told  me  that  he  gave  him  his  ticket  and  num- 
ber— an<l  he  had  his  number  on  a  piece  of  paper  when  he  came  to  the  polls. 

(Counsel  for  contestant,  Wigginton,  moves  to  strike  out  all  the  testiuiouy  as  to  the 
declarations  of  the  voter;  as  to  his  intention  and  desire  to  vote  the  Democratic  ticket, 
as  the  same  furnish  no  evidence  of  the  fact  that  the  voter  cast  his  vote  for  Mr.  Wig- 
ginton, as  it  appears  from  the  county  of  Los  Angeles  and  the  city;  also,  that  there 
were  at  least  over  two  humlred  Democrats,  so  called,  who  voted  for  Mr.  Tilden  and 
who  did  not  vote  lor  Mr.  AVigginton,  and  out  of  that  number  at  least  one  hundred  and 
twenty-five  who  voted  for  Mr.  Pacheco. 

Contestant  Wigginton  nbjects  to  the  statements  of  Roeder  to  the  witness  Robinson 
as  wholly  incompetent,  njion  the  ground  that  the  same  are  hearsay.) 

Q.  How  long  since  you  have  seen  the  person  referred  to  who  cast  the  vote  ? — A.  I  do 
not  know  that  I  have  seen  him  since  the  day  he  ca«>t  the  vote. 

Q.  Did  you  examine  the  ballots  that  were  distributed  bj-  Mr.  Roeder  on  that  day ; 
and,  if  so,  what  name  was  upon  said  ballots  for  Representative  in  Congress  from  this 
Congressional  district  ? — A.  I  did;  and  .Mr.  Wiggiuton's  name  was  on  all  the  ticket*  I 
saw  for  Congress. 

Q.  Do  you  know  where  the  party  to  which  you  have  referred  as  voting  is  at  the 
present  time? — A.  I  do  not. 

Q.  Was  the  party  to  whom  you  refer  as  voting  on  number  5953  the  same  party  de- 
scribed in  the  great  register  of  1876,  of  Los  Angeles  County,  under  that.numberf — A. 
He  was  not;  he  was  a  much  older  man. 

It  seems  to  us  that  this  is  a  clear  case  of  falsely  personating  another. 
There  is  no  evidence  that  weakens  the  force  of  what  is  quoted  above. 
On  the  contrary,  it  is  strengthened  by  the  cross-examination,  as  witness 
the  following: 

Q.  Is  not  your  entire  evidence,  as  to  the  identity  of  the  party  voting  with  the 
Thomas  O'Mara  enrolled,  based  upon  the  appearance  of  the  party  voting  and  the  en- 
tries in  the  great  register  opposite  the  name  of  Thomas  O'Mara? — A.  Partly  so;  but 
it  is  based  also  upon  his  own  repeated  declarations  above  testified  to. 

Q.  Did  he  not  in  these  declarations  state  to  yon  that  his  name  was  Marja? — A.  My 
recollection  is  that  be  gave  his  name  as  Patrick  or  John  Mara.  It  certainly  was  not 
lliomas  O'Mara. 


This  was  clearly  an  illegal  vote  for  Wigginton. 


WIGGINTON    VS.    PACHECO.  43 

Gustave  C.  Ferret. 

This  mau  voted  for  coutestant  without  beiug  naturalized.  The  fol- 
lowing evidence  is  conclusive  on  that  subject  (see  Record,  p.  152): 

Mr.  Alfred  James  sworn. 

Question.  Where  do  you  now  rfesitle,  and  if  iu  Los  Angeles  County,  California,  how 
louo;  have  you  been  a  resident  of  said  place  ? — Answer.  I  resid*^  iu  Los  Angeles  County, 
California,  and  have  resided  there  between  eight  aud  nine  years. 

Q.  Were  you  at  the  polls  in  the  fourth  precinct,  city  of  Los  Angeles,  at  the  election 
for  Representative  iu  Congress  on  Xovember  7,  1876  f — A.  I  was. 

Q.  Did  you  see  the  person  vote  who  gave  his  name  as  Gustave  C.  Perret? — A.  I  did. 

Q.  Was  his  vote  challenged  f — A.  I  challenged  his  vote. 

Q.  On  what  grounds  did  you  challenge  his  vote f — A.  On  the  ground  that  he  was 
nor  a  citiztn  of  the  United  States,  and  also  that  his  name  was  not  on  the  great  reg- 
ister of  Los  Angeles  County. 

Q.  Was  his  l)a]lot  received  by  the  board  of  election? — A.  It  was. 

Q.  Do  you  know  from  whom  he  procured  his  ballot  f — A.  Of  my  own  knowledge  1 
do  not.  He  was  immediately  prior  to  the  time  when  he  presented  his  ballot  in  com- 
pany with  J.  L.  Arpin,  and  Ari)in  during  that  day  was  frequently  in  company  and  ap- 
parently in  consultation  with  Thomas  D.  Mott,  and  I  also  think  with  Thomas  Rowan, 
both  of  whom  were  actively  at  work  on  that  day  for  the  Democratic  ticket,  including 
P.  D.  Wiggiutou  for  Representative  in  Congress. 

Q.  How  long  have  yon  known  Thomas  D.  Mott,  G.  L.  Arpiii,  aud  Thomas  Rowan, 
and  what  have  been  their  political  affiliations  during  that  time? — A.  1  have  kHowu 
them  about  five  yeai-s,  during  all  of  which  time  I  have  known  them  to  be  active  niem- 
bers  of  the  Democratic  party. 

Q.  How  long  since  you  have  seen  the  man  who  voted  as  Gustave  C.  Perret  ? — ^A.  I 
have  not  seen  him  since  the  day  he  voted. 

Q.  Do  you  know  where  h«  now  is  f — A.  I  do  not;  I  have  made  inquiries  concerning 
bis  wliereabouts  without  gaining  any  information  relating  thereto. 

Cross-examined : 

<i>.  Did  the  mau  Perret  swear  in  his  vote? — A.  He  did. 

Q.  Did  he  present  his  card  of  registration  ? — A.  He  did. 

Q.  Do  you  not  know  that  he  voted  for  Pacheco? — A.  I  do  not. 

Q.  Do  you  not  know  that  Thomas  D.  Mott  and  Thomas  Rowan  are  warm  friends  of 
Mr.  Pacheco? — A.  1  do  not. 

Q.  Do  yon  not  know  at  least  a  hundred  so-called  Democrats  voted  for  Mr.  Pacheco 
in  this  city  ? — A.  I  do  not. 

Q.  Do  you  know  how  this  man  Perret  voted,  whether  for  Wigginton  or  Pacheco? — 
A.  I  do  not. 

Q.  Are  you  a  Know-Nothing  or  a  Republican? — A.  I  am  a  Republican. 

Q.  Are  y<m  not  an  active  Republican,  and  were  you  not  holding  office  under  the 
Federal  Government  in  November  last,  and  did  you  not  as  such  take  an  active  part  in 
the  elect icm  in  that  month? — A.  I  am,  aud  was  at  that  time  register  of  the  United 
St  ate*  land  office  in  this  city,  but  took  no  more  active  part  in  the  election  than  I  deemed 
it  niv  dutv  to  mv  partv. 

ALFRED  JAMES. 

John  Beierly,  on  p.  159,  testifies: 

Q.  Do  you  know  Gustave  C.  Perret,  and  did  you  know  him  the  day  of  the  election, 
November  7,  18T(j? — A.  I  saw  him  at  the  polls  in  the  fourth  precinct  of  Los  Angeles 
City,  Los  Angeles  County,  at  that  election.     I  have  no  other  acquaintance  with  him. 

Q.  Was  his  vote  challenged  at  the  time  you  refer  to?  If  so,  state  what  occniTed. — 
A.  It  was  challenged  by  Alfred  James,  on  the  grounds  that  he  was  not  a  citizen  of  the 
United  States,  and  that  he  was  not  enrolled  upon  the  great  register  of  Los  Angeles 
County.  He  presented  a  certificate  of  registration,  and  his  vote  was  received  by  the 
board  of  election. 

Q.  Whht  do  you  know  of  his  politics  at  that  time  and  before! — A.  I  had  no  personal 
a»(|uaintance  with  him,  and  only  know  the  politics  of  the  person  who  gave  him  his 
ballot  and  was  his  witness  when  he  applied  ft>r  naturalization  papers. 

Q.  Who  was  the  man  that  gave  him  his  ballot,  and  what  kind  of  ballots  was  he  dis- 
tributing at  ihe  time  he  gave  Perret  his  ballot? 

(Objected  to  by  counsel  for  contestant  as  incompetent,  immaterial,  and  irrelevant.) 

A.  His  name  was  J.  L.  Arpin.  He  was  distributing  straight  Democratic  ballots  at 
that  time. 

Q.  Do  you  swear  that  Perret  voted  the  straight  Democratic  ticket? — A.  I  have 
stated  that  I  have  no  personal  acquaintance  with  Perret,  aud  know  nothing  listohow 


44  DIGEST    OF    ELECTIOX    CASES. 

he  voted,  excev>t  that  J.  L.  Arpin,  who  was  workinjr  for  the  straight  Demoeratic  ticket 
and  distributing  straight  Democratic  ballots,  was  Ferret's  witness  when  he  applied  to 
be  naturalized,  and  Arpin  gave  Ferret  his  ballot. 

Q.  Do  you  swear  that  he  voted  the  ballot  that  Arpin  gave  him  ? — A.  I  cannot  swear 
that  be  voted  that  ballot,  though  I  went  to  the  polls  and  requested  Mr.  James  to 
challenge  his  vote,  and  was  observing  him  closely,  until  he  gave  his  ballot  to  the  in- 
spector of  the  election,  and  I  tirmly  believe  he  did  not  change  the  ballot  after  he  re- 
ceived it  from  Arpin. 

Q.  I  do  not  ask  you  as  to  your  belief;  I  ask  yon  to  swear  to  what  yon  know. — A.  As 
all  ballots  in  this  State  are  uniform  in  size  and  style  of  paiter  and  printing,  and  the 
law  forbids  the  unfolding  of  a  ballot  within  one  hundred  feet  of  the  polls,  I  cannot  and 
do  not  know  how  anybody  voted,  except  myself;  and  by  the  statements  of  other 
voters  I  do  not  know  how  Ferret  voted. 

JOHN  R.  BRIEKLY. 

This  iiiau  Perret  bad  not  been  natiirabzed.  It  is  perfectly  clear  tbat 
be  was  not  naturalized  until  the  2d  of  December  folloiring  the  election^ 
as  is  shown  by  the  following:  records : 

In  the  county  court  of  the  State  of  California. 
Present,  Hon.  H.  K.  S.  O'Melveny,  judge. 

In  the  matter  of  the  application  of  Gnstave  C.  Ferret,  an  alien,  to  become  a  citizen  of 

the  United  States  of  America,  in  open  court,  November  term,  A.  D.  1876,  this  2d  day 

of  December,  A.  D.  1876,  as  yet  of  said  term. 

It  appearing  to  the  satisfaction  of  this  court,  by  the  oaths  of  J.  L.  Arpin  and  citizens 
of  the  United  States  of  America,  witnesses  for  that  jjurpose,  first  duly  sworn  and  ex- 
amined, that  GustaveC.  Ferret,  a  native  of  Switzerland,  resided  in  the  United  States 
of  America  three  j'e.'irs  next  preceding  his  arriving  at  the  age  of  twenty-one  years, 
and  that  he  has  continued  to  reside  in  the  United  States  to  the  present  time,  and  has 
resided  within  the  limits  and  under  the  jurisdiction  of  tlie  United  States  five  years  at 
least  last  past,  and  within  the  State  of  California  for  one  year  bist  past ;  and  that  dur- 
ing all  of  said  live  years'  time  he  has  bebaved  as  a  man  of  good  moral  character, 
attached  to  the  principles  of  the  Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same;  and  the  said  applicant  has  declared  his 
intention  to  become  a  citizen  of  the  United  States;  and  having  now  here  before  this 
court  taken  an  oath  that  he  will  support  the  Con.stitution  of  the  United  States  of 
America,  and  that  he  doth  absolutely  and  entirely  renounce  and  abjure  all  allegiance 
and  fidelity  to  every  foreign  prince,  potentate,  state,  or  sovereignty  whatever,  and 
particularly  to  the  repnblic  of  Switzerland: 

It  is  therefore  ord«'red,  adjudged,  and  decreed  that  the  said  Gustave  C.  Ferret  be, 
and  he  is  hereby,  admitted  and  declared  to  be  a  «'itizeu  of  the  United  States  of 
America. 

H.  K.  S.  O'MELVENY;. 

County  Judge. 

Signatvii-e : 

GcsTAVE  C.  Ferret. 

Office  ok  the  Clerk  ok  the  CorxTV  CoruT  ok  the  State  of  California, 

In  and  for  the  county  of  Los  AngeUs,  an: 

1,  A.  W.  Fotts,  clerk  of  the  county  court  of  the  State  of  California,  in  and  for  the 
county  of  Los  Angeles,  said  coni-t  being  a  court  of  record,  having  common-law  juris- 
diction and  a  clerk  and  seal,  do  certify  that  the  above  is  a  true  copy  of  the  act  of 
naturalization  of  Gustave  C.  Ferret,  with  athdavit  of  witness  and  applicant  attachetl, 
as  the  same  appears  upon  the  records  of  said  court  now  in  my  office. 

In  testimony  whereof  1  have  hereunto  set  my  hand  and  affixed  the  seal  of  said  court 
this  14th  day  of  September,  in  the  year  of  our  lord  one  thousiind  eight  hundred  and 
seventy-seven,  and  in  the  year  of  our  indepi'udence  the . 

[SEAL.]  ■  A.  W.  FOTTS,  Clerk. 

By  D.  M.  ADAMS,  JJejnity  Clerk. 

United  States  ok  America,  State  of  California  : 

In  the  county  court  of  the  county  of  Los  Angeles,  count}'  of  Los  Angeles,  ss. 

In  the  matter  of  the  application  of  Gus.  C.  Ferret  to  be  admitted  a  citizen  of  the 

United  States. 

J.  L.  Arpin,  of  said  county,  being  duly  sworn,  testifies  and  says  that  he  is  will  ac- 
quainted with  the  above-named  Gus  C.  Perret,  and  has  been  so  acquainted  with  him 


WIGGIXTOX    VS.    P\CHECO.  45 

for  tive  yeaifs,  and  that  the  saulGiis.  C  Perret  has  contiuually  resided  within  the  lim- 
its and  under  the  jurisdiction  of  the  I'nited  States  of  America  for  live  years  hist  past, 
and  for  one  year  hist  past  within  the  State  of  California;  and  that  durinj;  such  time  he 
has  behaved  himself  as  a  man  of  good  moial  character,  attached  to  the  principles  of 
the  Constitution  of  the  United  States,  and  Avell  disposed  to  the  good  order  and  hap- 
piness of  the  same. 

Subscribed  and  sworn  to  in  ojien  eeurt  this  2d  day  of  December,  A.  D.  1876. 

[SEAL.]  '  A.  W.  POTTS,  Clerk. 

State  of  California, C'omh/.i/  of  Los  An'jeJes,  ss: 

I,  Gus.  C.  Perret,  do  solenmly  swear  that  I  will  support  the  Constitution  of  tho 
United  States,  and  I  do  absolutely  and  entirely  renounce  and  abjure  all  allegiance  and 
tidelity  to  all  and  every  foreign  prince,  potentate,  state,  or  sovereignty  whatever,  and 
particularly  to  the  Republic  of  Switzerland. 

GUSTAVE  C.  PERRET. 

Subscribed  and  sworn  to  in  open  court  this  'Jd  day  of  December,  A.  D.  1876,  before 
me. 

These  records  sbow  beyoutl  question  that  this  mau  was  not  naturalized 
until  December  2,  1876.    His  vote  must  therefore  be  rejected. 

John  Peterson. 

This  man  procured  naturalization  papers  by  fraud.  His  pai)ers  were 
l)rocnred  by  means  of  i)eijured  testimony.  This  is  shown  b}'  the  evi- 
dence of  Peterson  himself.     (See  Record,  p.  144.) 

He  testifies  as  follows : 

Juiix  Peterson,  being  called  and  examined  as  a  witness  on  behalf  of  Mr.  Pacheco, 
an«l  being  lirstduly  sworn,  testified  as  follows: 

Question.  Where  do  you  live? — Answer.  In  Red  Wood  City,  Cal. 

Q.  How  long  have  yon  lived  here? — A.  Four  years  the  2yth  of  January  next. 

Q.  Did  you  vote  at  the  last  Presidential  and  Congressional  election  on  November7, 
187(>? — A.  Yes,  sir;  I  did. 

Q.  Wliere  ? — A.  In  Redwood  City,  San  Mateo  Conuty,  California. 

Q.  Who  did  you  vote  fort — A.  I  voted  for  Tilden  for  President. 

Q.  Who  did  you  vote  for  for  Congressman  ? — A.  I  have  forgotten  his  name.  I  voted 
the  Democratic  ticket. 

Q.  Was  it  the  straight  Democratic  ticket  f — A.  It  was.  I  voted  the  straight  Demo- 
cratic ticket. 

<^.  Would  you  know  the  name  of  the  Cougressmau  if  you  heard  it  ? — A.  I  think  I 

would. 

(^  Was  it  P.  D.  Wigginton  ?— A.  Yes,  sir. 

Cj>.  Where  were  you  born  ? — A.  In  Sweden. 

(,►.  When  did  you  come  to  the  United  States  to  reside  ? — A.  In  1868. 

i^.   How  old  were  you  when  you  came  ? — A.  I  was  born  on  the  17th  of  June,  1841. 

t}.  How  old  were  you  when  you  came  in  18(58! — A.  I  was  20,  going  on  27  years. 

Q.  Did  you  otter  to  register  in  Redwood  City  before  the  Presideutial  election? — A. 
Y'^es. 

Q.  Did  you  apply  for  naturalization  at  Redwood  City  ? — A.  Yes. 

Q.  When  7 — A.  The  day  before  the  election. 

Q.  Did  you  get  naturalized  then? — A.  No,  sir. 

Q.  Why?  State  what  occurred. — A.  I  had  no  witnesses  there  who  knew  me  in  Cal- 
ifornia under  age.     I  was  in  California  in  1858.  but  did  not  remain  then. 

Q.  How  did  you  come,  and  what  was  you  doing  here  in  1858? — A.  I  came  in  a  vessel. 

Q.  What  was  you  doing  on  the  vessel  ? — A.  I  belonged  to  the  ship  as  one  of  the  crew. 

Q.  Did  yon  remain  on  board  of  her  and  go  away  with  her  ? — A.  Y'es,  sir. 

Q.  Where  did  you  go  to  ? — A.  We  went  to  Newcastle,  England. 

Q.  What  was  the  ship ;  where  did  she  belong  ? — ^A.  The  Alert ;  Copenhagen,  Den- 
mark. 

Q.  Where  did  you  go  to  from  Newcastle? — A.  We  went  back  to  Denmark. 

Q.  When  did  you  next  return  to  the  United  States  ?— A.  To  New  York,  in  1867. 

Q.  Did  you  remain  then  in  the  United  States,  or  return  ? — A.  I  shipped  from  New 
Y'ork  in  1867,  and  came  to  Sau  Francisco  in  1868. 

Q.  When  you  applied  for  naturalization  at  Redwood  City  the  day  before  the  last 
Presidential  election,  had  you  first  papers — I  mean  your  declaration  of  intention ? — A. 
No;  I  did  not  have  them. 


46  DIGEST    OF    ELECTION    CASES. 

Q.  Did  the  clerk  of  the  court  ask  you  for  tliem  ? — A.  Yes.  sir. 

Q.  Did  he  refuse  to  naturalize  you  because  you  had  not  your  fii-st  pajiers  ? — A.  Yes, 
Bir. 

Q.  What  did  you  then  do  relative  to  gettinpr  out  your  papers  ? — A.  Then  I  went  back 
to  my  place  here  in  Redwood  City,  where  I  had  a  saloon,  and  one  of  my  witnesses  come 
along  with  me  to  my  saloon,  and  asked  me  if  I  wanted  to  go  down  to  San  Francisco, 
he  would  try  to  get  the  papers  out  for  me.  Then  I  said  I  did  not  care  about  going  to 
the  cityif  I  did  nofc  get  my  papers  in  Redwood  City.  So  he  said  to  me,  "Come  along"; 
and  he  started  oflf  to  San  Francisco  the  day  before  the  election. 

Q.  What  did  you  do  after  you  got  to  San  Francisco  ? — A.  We  went  iip  to  the  twelfth 
district  court  to  see  if  we  could  get  my  naturalization  papers.  When  we  got  there 
we  found  we  could  not  get  them  before  half  past  eleven  that  evening. 

Q.  Did  you  go  to  the  court  at  half  past  eleven  o'clock  that  night  ? — A.  Yes,  sir. 

Q.  State  what  was  done  there. — A.  That  witness  I  had  with  me,  named  John  Hanua, 
he  spoke  to  the  judge  about  getting  my  naturalization  papers. 

Q.  Did  the  clerk  swear  Hauna  as  a  witness  for  you  ? — A.  Yes,  sir. 

Q.  What  did  the  judge  ask  Hanna  ? 

(Objected  by  Mr.  Wigginton  upon  the  ground  that  it  is  an  attempt  to  show  by  the 
witness  the  record  of  the  twelfth  district  court  of  this  State,  and  that  the  same  is 
irrelevant  and  secondary  evidence. ) 

A.  He  asked  Hanna  if  he  knew  me  in  California  under  age. 

Q.  What  was  Hanna's  answer  f 

(Objection  same  as  above.) 

A.  He  said  he  knew  me  in  California  in  185d. 

Q.  When  did  vou  first  ever  see  Hanua  f — A.  Saw  him  first  in  San  Francisco,  in  1870 
or  1871. 

Q.  Did  you  then  get  your  papers  from  the  twelfth  district  court  ? — A.  I  did. 

Q.  On  these  papers  did  you  get  registered  in  Redwood  City  ? 

(Objected  as  secondary.) 

A.  I  did. 

Q.  Who  was  it  that  proposed  to  you  to  go  to  San  Francisco  and  get  naturalized  ? 

(Objection,  as  immaterial  and  irrelevant,  and  further  that  there  is  no  evidence  that 
he  was  ever  naturalized.) 

A.  John  Hanna. 

Q.  Yon  mean  the  John  Hanna  that  was  the  witness  ? — A.  Yes,  sir. 
Cross-examination  by  Mr.  Wigginton : 

Q.  Do  yon  know  of  your  own  knowledge  who  was  the  owner  of  the  vessel  on  wMch. 
you  came  to  the  United  States  in  1858? — A.  His  name  w^as  Hans  Sjourensen. 

Q.  Was  he  the  master  of  the  ship  ? — A.  No ;  he  was  the  owner. 

Q.  How  do  you  know  he  was  the  owner  f — A.  I  know  by  hearing  the  captain  and 
crew  say  so. 

Q.  When  you  first  came  to  the  United  States,  where  did  you  land  * — A.  In  San 
Francisco. 

Q.  How  long  did  you  remain  there  ? — A.  About  two  months  or  a  little  more. 

Q.  What  did  you  do  while  you  were  here? — A.  I  remained  on  board  the  vessel  in 
the  harbor. 

Q.  When  you  left  San  Francisco  had  you  any  intention  of  returning  ? — A.  No,  sir. 

Q.  When  did  you  first  form  the  intention  of  residing  in  and  becoming  a  citizen 
of  the  United  States  ?— A.  Since  18G8. 

Q.  When  you  went  before  the  twelfth  district  court,  in  San  Francisco,  and  applied 
for  your  citizen-papers,  did  yon  or  did  you  not  know  that  you  were  not  entitled  to 
them  ? — A.  I  did  not  know  whether  I  was  entitled  to  them  or  not. 

Q.  Did  you  understand,  in  making  that  application,  that  it  was  necessary  for  Hanna 
to  swear  that  he  knew  you  in  California  in  1858  ? — A.  No,  sir ;  I  did  not. 

Q,  Did  you  hear  Hanna  swear  that  he  knew  you  in  Californi,  in  1858? — A.  Yes,  sir. 

Q.  Did  you  object  when  you  heard  him  swear  it,  or  did  you  remain  silent? — A.  I  re- 
mained sileut ;  said  nothing. 

Q.  Who  paid  your  expenses  to  San  Francisco  ? — A.  I  did. 

Q.  To  whom,  if  any  one,  have  you  made  a  statement  of  the  facts  and  circumstances 
under  which  you  procured  your  citizen-papers  ? — A.  I  stated  it  to  Mr.  Van  Dasen,  the 
attorney  here,  in  the  United  States  district  attorney's  office  in  San  Francisco,  some 
time  in  November  or  December  of  last  year. 

Q.  Can  you  swear  positively,  of  your  own  knowledge,  that  the  name  of  P.  D.  Wig- 
gington  was  on  the  ticket  which  you  voted  at  the  election  in  November,  1876  ? — A. 
No,  sir  I  cannot  swear  exactly ;  it  was  the  straight  Democratic  ticket,  but  I  did  not 
take  particular  notice  of  it. 

Q.  Give  the  name  of  any  one  man,  or  more,  that  you  are  sure  you  voted  for  in  the 
Presidential  election  of  1876. — A.  I  voted  for  Tilden.     That  is  all  I  know. 


WIGGINTON    VS     PACHECO.  47 

Q.  Are  yon  as  sure  rliat  you  voted  for  Tildeu  as  you  are  of  anything  else  you  have 
testified  to  in  this  deposition  ? — A.  Yes,  sir. 

Q.  Do  yon  read  and  write  English  readily  ? — A.  I  can  read  English,  but  cannot 
write  it. 

Q.  Did  yon  read  your  ticket  before  yon  voted  it? — A.  I  looked  over  it,  but  did  not 
take  i>articnlar  notice  of  all  that  was  on  it. 

Q.  Ai'e  you  sure  that  Tildeu's  name  was  on  it? — A.  Yes,  sir. 

Redirect  by  Mr.  Van  Dnseu  : 

Q.  Do  yon  remember  of  Hanna  being  tried  for  perjury  iu  the  United  States  district 
court  last  winter  ? 

(Objected  to  as  irrelevant  and  secondary.) 

A.  Yes,  sir. 

Q.  Were  you  a  witness  for  the  Government  in  that  case  ? 

(Same  objection  as  above.) 

A.  Yes,  sir. 

Q.  When  you  say  yon  voted  for  Tilden,  or  that  Tildeu's  name  was  on  the  ticket, 
do  yon  mean  you  voted  the  straight  Democratic  ticket,  and  for  Democratic  electors 
and  Congressman  ? 

(Objected  to  as  leading,  and  being  in  the  nature  of  a  cross-examination  of  the 
cro8.s-examination  of  the  defense.) 

A.    Yps  sir 

JOHN  PETERSON. 

Now  here  is  a  clear,  palpable  case  of  procuring  fraudiileut  naturaliza- 
tiou-papers.  In  the  majority  report  the  singular  doctrine  is  asserted 
that  because  these  papers  were'issued  by  a  court  of  competent  jurisdic- 
tion and  were  regular  on  their  face,  they  cannot  be  ''attacked  collat- 
erally." That  is  to  say,  if,  by  means  of  perjury,  a  man  can  commit 
a  fraud  upon  the  court  and  upon  the  law,  and  thereby  get  his  papers,  he 
can  get  the  benefit  of  that  fraud,  and  when  he  presents  himself  as  a 
voter  his  vot€!  must  be  received.  Just  what  is  meant  by  the  majority 
by  saying  that  the  papers  cannot  be  attacked  collaterally  is  not  very 
clear.  We  can  conceive  of  nothing  that  can  be  meant  except  that 
somebody  would  have  to  go  into  court  and  iu  a  direct  proceeding  set 
aside  the  papers  for  fraud.  We  cannot  believe  that  this  House  will 
ever  indorse  such  a  preposterous  doctrine.  The  rule  of  law  is  stated  by 
McCrary,  section  21,  just  the  reverse  of  what  is  here  ruled  by  the  major- 
ity. Parol  evidence  is  competent  to  prove  the  fraud,  and  when  it  is 
proven  the  vote  is  rejected.  This  was  clearly  an  illegal  vote  for  Wig- 
ginton  and  must  be  rejected. 

Thomas  S.  Methvin. 

This  man  voted  for  Wigginton  illegally.  He  had  left  the  State  with 
his  family  two  or  three  years  before ;  he  went  to  Arizona  to  make  it  his 
home,  and  only  returned  two  or  three  weeks  before  the  election.  That 
is  clear,  from  the  evidence,  which  is  as  follows  (p.  129,  Record) : 

Question.  State  yourname,  age,  residence,  and  occupation. — Answer.  John  Saviers  ; 
my  age  is  fifty-five ;  I  reside  at  Pleasant  Valley,  in  Ventura  County,  California  ;  I  am 
a  farmer  by  occupation. 

Q.  Did  you  act  in  any  official  capacity  in  Pleasant  Valley  precinct  at  the  last  No- 
Member  election  ;  and,  if  so,  what  f^-A.  I  was  one  of  tlie  judges  of  election. 

Q.  Did  you  at  that  time  know  Thomas  Scott  Methwin,  or  Methvin  ? — A.  I  did  know 
.1  man  by  that  name. 

Q.  Did  he  vote  at  that  election  ? — A.  Yes,  sir. 

Q,  How  long  had  he  resided  in  this  State,  and  in  Pleasant  Valley  precinct,  imme- 
diately preceding  the  day  of  election  ? — A.  To  my  own  knowledge  it  could  not  have 
been  more  than  twenty  days.  I  cannot  say  positively  whether  it  was  twenty,  forty, 
or  sixty  days ;  but  I  don't  think  that  it  was  over  twenty  days. 

Q.  Do  you  mean  twenty  days  iu  the  precinct  or  in  the  State  ? — A.  I  mean  both. 

Q.  Do  yon  know  of  Methvin  residing  in  the  State  before  that  time ;  and,  if  so, 
whether  he  left  the  State,  and  where  he  went  to,  if  he  did  leave  the  State,  and  about 


48       -        DIGEST  OF  ELECTION  CASES. 

what  time  lie  left  ?  Tell  all  about  it  in  your  owu  wa}^ — A.  In  the  snmiuer  of  1874 
or  li^75  he  left  to  go  to  Ai'izona  to  make  that  his  home,  so  he  told  uie  before  he  weut. 
Previous  to  his  leaving  for  Arizona  he  must  have  been  in  that  precinct  for  three  or 
four  years. 

Q.  Did  he  make  any  statement,  in  answer  to  his  vote  being  challenged,  about  how 
long  he  had  been  back  in  this  State  from  Arizona ;  and,  if  so,  was  it  by  affidavit  or 
otherwise  f — A.  He  made  an  affidavit,  claiming  a  right  to  vote  upon  the  ground  that 
he  reserved  the  right  to  return. 

Q.  In  that  affidavit  did  he  state  that  it  was  his  intention  to  return  to  this  State 
and  make  it  his  home  at  the  time  that  he  left  the  State  to  go  to  Arizona  ? — A.  He 
did  not. 

Q.  When  he  left  this  State  to  go  to  Arizona  did  he  take  his  property  with  him  or 
did  he  leave  it  at  his  former  home  in  Pleasaut  Valley  f — A.  He  left  no  property  that 
I  know  anything  about. 

Q.  Had  lie  any  home  or  homestead  or  house  in  Pleasant  Valley  dux-ing  the  time  that 
he  was  in  Arizona  ? — A.  No,  sir. 

Q.  Did  he  move  his  family  to  Arizona  when  he  went  himself? — A.  He  started  with 
his  family,  but  I  do  not  know  where  he  took  them  to. 

Q.  Did  he  take  up  any  land  or  purchase  any  while  he  was  in  Arizona  ? — A.  Person- 
ally, I  don't  know. 

Q.  Did  you  hear  him,  or  any  one  that  was  in  Arizona  with  him,  say  anything  about 
that  ?    If  so,  what  ? 

(Question  objected  to  on  the  part  of  contestant,  on  the  ground,  1st.  that  the  answer 
sought  would  be  only  hearsay ;  iJd,  that  in  regard  to  title  to  real  estate  parol  evidence 
is  inadmissible;  3d,  because  the  evidence  is  imnuiterial  and  irrelevant.) 

A.  He  said  himself  on  the  examination  respecting  his  right  to  vote  that  he  had  not 
taken  up  any  land  or  claim.  Mr.  Hicks  the  nest  day  after  the  election  told  me  that 
he  would  swear  that  Mr.  Methvin  had  located  a  miuing-claim,  and  that  he,  Methviu, 
could  not  leave  Arizona  till  the  return  of  some  $350  from  San  Francisco  as  iiay  for  his 
claim. 

Q.  Did  you  ever  hear  Methvin  state  what  he  was  doing  in  Arizona  during  the  timt' 
that  he  was  there  *  If  so,  state  what  he  said  about  it. — A.  I  don't  recollect  that  he 
ever  did  tell  me  what  he  followed  in  Arizona. 

Cross-examination : 

Q,  This  statement  made  to  you  by  Mr.  Hicks  about  Methvin  having  a  miuing-claim 
was  made  in  private  conversation,  was  it  not ' — A.  Yes,  it  was. 

Q.  Was  Mr.  Methvin  present  at  this  conversation  when  it  took  place  f — A.  He  was 
not. 

Q.  Do  you  know  of  your  knowledge  what  year,  month,  and  day  of  the  month,  that 
Mr.  Methvin  left  this  State,  if  he  left  it  at  all  ? — A.  I  do»'t  know  certain  the  day  of 
the  month,  nor  too  certain  the  year,  but  it  was  over  one  year  from  the  time  he  left 
till  he  returned,  to  the  best  ot  my  knowledge. 

Q.  Can  you  state  of  your  own  knowlr^dge  that  when  he  left  Hueneme  Township,  as 
you  have  stated,  that  he  Avent  to  Arizona ! — A.  He  told  me  that  he  was  going  to  Ari- 
zona.    When  he  came  back  he  said  he  had  been  to  Arizona. 

Q.  Did  Mr.  Methvin  not  state  to  you  that  he  went  to  Arizona  for  temyjorary  puqioses 
only,  and  not  with  the  intention  of  abandoning  his  residence  in  Hueneme  Township 
or  ijrecinct,  Ventura  County,  California,  and  that  he  always  con.sidered  that  his  home, 
or  words  to  that  etfect  f — A.  He  never  told  me  anything,  but  on  the  day  of  the  elec- 
tion he  stated  to  the  board  that  he  reserved  a  right  to  return  to  California  if  he 
wished  to. 

Q.  Was  his  vote  challenged  upon  the  ground  that  he  was  not  a  resident  of  Pleasant 
Valley  precinct  f — A.  Yes,  sir  ;  nor  of  this  State.     He  was  challenged  on  both  grounds. 

Q.  Was  his  vote  received  by  the  board  of  election  ? — A.  It  was. 

Redirect : 

Q.  Did  he  not  refuse  to  swear  that  when  he  left  the  State  to  go  to  Arizona  that  it 
was  his  intention  to  retnm  to  this  State  ? — A.  He  refused  to  answer  the  question,  only 
that  he  reserved  a  right  to  return. 

Q.  When  he  told  you  that  he  was  about  to  go  to  Arizona,  give,  as  near  as  you  can, 
the  words  that  he  used  about  making  Arizona  his  home. 

(Objected  to  on  the  ground  that  this  is  a  matter  already  inquired  into  in  the  direct 
examination,  and  not  in  response  to  any  new  matter  inquired  into  in  the  cross-exami- 
nation.) 

A.  He  told  me  that  he  had  no  home  here  for  him  or  family,  and  that  Arizona  was 
the  la.st  place  that  he  knew  where  he  could  get  Government  land  to  get  him  or  mak- 
ing him  a  home. 

Q.  Was  he  a  Democrat  or  a  Republican  before  and  at  the  time  that  he  voted  at  the 
last  November  election  f — A.  He  alwavs  claimed  to  be  a  Democrat. 


WIGGINTON    VS.    PACHECO.  49 

Q.  Do  you  know  whether  he  voted  for  Pacheco  or  Wigginton  at  said  election  ? — A. 
I  do  not  know  who  he  voted  for. 

JOHN  SAVIER. 

John  W.  Sebastian  testifies  (p.  131) : 

Question.  State  your  name,  age,  residence,  and  occupation. — Answer.  My  name  is 
John  William  Sebastian;  my  age  is  45;  I  reside  in  Pleasant  Valley,  Ventura  County, 
California  ;  I  am  a  blacksmith  by  occupation. 

Q.  Do  yon  know  Thomas  Methvin,  late  of  Pleasant  Valley  precinct? — A.  I  do. 

Q.  Did  he  vote  in  that  precinct  at  the  last  November  election  ? — A.  He  did. 

Q.  About  how  long  had  he  resided  in  that  precinct  immediately  preceding  said  elec- 
tion ? — A.  I  am  not  sure  how  long  he  resided  there  before  the  election. 

Q.  About  how  long  before  the  election  had  you  seen  him  there  ? — A.  Three  or  four 
weeks. 

Q.  Do  you  know  anything  about  where  he  came  from  when  he  came  there,  either 
from  his  own  say-so  or  otherwise  ?  If  so,  please  state  all  about  it. — A.  I  heard  others 
say  that  he  came  from  Arizona  ;  I  did  not  hear  him  say  anything  about  it. 

Q.  How  long  had  yon  resided  in  that  precinct  or  neighborhood  before  the  last  No- 
vember election  ? — A.  About  ten  mouths,  I  guess. 

Q.  At  the  time  of  the  November  election,  was  said  Methvin  a  Democrat  or  a  Re- 
publican?— A.  I  could  not  tell  you. 

Q.  Did  you  not,  with  others,  take  quite  an  active  part  in  insisting  or  urging  hia 
right  to  vote  at  said  election,  when  his  vote  was  challenged  ? — A.  1  knew  not  any- 
thing about  his  vote  being  challenged  till  I  see  him  reaching  his  ticket  to  the  judges 
or  inspector,  and  then  there  was  some  talk  about  his  having  a  right  to  vote  or  not. 
I  said  I  thought  that  he  had  a  right  to  vote. 

Q.  Why  did  you  say  that  "  you  thought  he  had  a  right  to  vote  "  ? — A.  Because  I 
had  been  in  his  same  situation.     I  have  voted  before  that.     Not  at  that  election. 

Q.  Are  you  not  a  Democrat,  and  were  you  not  working  actively  for  the  success  of 
the  Democratic  ticket  at  that  election  ? 

(Objected  to  on  the  ground  that  it  is  immaterial  whether  the  witness  was  a  Repub- 
lican or  a  Democrat.) 

A.  I  am  and  I  was, 

Q.  And  did  you  not  urge  Methvin  to  vote  at  that  election? — A.  I  did  not. 

Q.  Did  you  not  know  what  ticket  Methvin  was  voting  or  trying  to  vote  at  that 
election  ? — A.  I  did  not  at  the  time.  I  always  supposed  him  to  be  a  sort  of  a  half-way 
man,  and  I  was  afraid  to  tackle  him  for  fear  I  would  hurt  myself. 

Q,  You  say  you  did  not  at  the  time  know  how  he  would  vote ;  have  you  learned 
since  how  he  voted  ? — A.  I  have  not. 

Q.  Then  what  did  you  mean  by  the  remark  "  at  the  time,"  in  your  former  answer  ? 
— ^A.  Well,  at  the  time  I  was  afraid  that  he  would  go  against  my  party,  therefore  I  was 
afraid  to  say  anything  to  him. 

Q.  If  you  was  working  actively,  as  you  say,  for  the  success  of  the  Democratic  ticket 
at  said  election,  why  did  you  so  earnestly  urge  before  the  judges  that  he  had  a  right 
to  vote  when  you  was  afraid  that  he  would  vote  against  your  party  ? — A.  Because  I 
believe  every  citizen  has  a  right  to  vote. 

Q.  V/as  that  the  only  reason  ? — A.  Yes. 

Q.  Had  you  ever  known  Methvin  before  he  come  there  some  three  or  four  weeks 
before  that? — A.  Yes,  sir. 

Q.  How  long  had  you  known  him? — A.  Three  or  four  years. 

Q.  Where  had  you  known  him? — A.  At  Pleasant  Valley. 

Q.  And  don't  you  know  that  he  was  a  Democrat  ? 

(Objected  to  this  and  other  questions  which  have  been  asked  this  witness,  on  the 
ground  that  they  are  leading  and  in  the  nature  of  cross-examination.) 

A.  No;  I  don't. 

Cross-examination : 

Q.  Is  it  not  usual,  or  of  frequent  occurrence  with  citizens  of  this  county,  to  make 
trips  to  Arizona  for  the  purpose  of  prospecting  and  locating  mining-claims,  without 
any  intention  of  abandoning  their  homes  in  this  State? 

(Objected  to  as  no  cross-examination  of  anything  that  the  witness  has  testified  to 
in  his  direct  examination.) 

A.  I  have  known  of  several  that  have  left  this  part  and  came  back,  and  are  living 
here  now. 

Q.  Do  you  know,  of  your  own  knowledge,  that  Thomas  Methvin  was  not  in  this 
State  and  in  Pleasant  Valley  precinct  more  than  thirty  days  before  the  day  of  the 
November  election  ? — A.  I  do  not  know  exactly  the  time.  I  think  that  he  was  here 
about  three  or  four  weeks  before  the  election, 

Q.  So  far  as  you  know,  might  he  not  have  been  in  this  State,  county,  and  precinct 
six  weeks  before  the  election  ? — A.  I  don't  know:  could  not  say. 

n.  Mis.  58 4 


50  DIGEST    OF   ELECTION    CASES. 

Redirect : 
Q.  I8  it  usual  or  of  customary  occurrence  for  citizens  of  this  county  to  declare 
opeuly  to  their  neighbors  that  they  are  going  to  move  to  Arizona  for  the  purpose  of 
making  it  their  home,  and  immediately  gather  all  their  property  and  their  families 
and  go  to  Arizona  with  the  same,  and  go  into  business  there  and  remain  there  for  a 
year  or  two,  and  not  have  the  intention  of  abandoning  their  residence  in  this  State, 
and  acquiring  a  residence  in  the  State  of  Arizona;  have  you  known  several  such;  if 
BO,  who  are  thev? — ^A.  I  have  not  known  anv  such. 

J.  W.  SEBASTIAN. 

Deposition  of  Albert  Sidney  Clark. 

Question.  State  your  name,  age,  place  of  residence,  and  occupation! — Answer.  My 
name  is  Albert  Sidney  Clark;  my  age  is  28;  I  reside  in  Pleasant  Valley  precinct,  in 
the  county  of  Ventura;  I  am  a  merchant  by  occupation. 

Q.  Were  yon  at  the  polls  of  election  held  in  Pleasant  Valley  precinct,  in  this  county, 
in  last  November? — A.  Yes;  I  was. 

Q.  Do  you  know  Thomas  Methvin,  late  of  that  precinct? — A.  I  do. 

Q.  Did  he  vote  at  said  election  in  that  precinct? — A.  Yes;  I  think  he  did. 

Q.  How  long  had  you  resided  in  that  precinct  immediately  prior  to  said  election  ? — 
A.  I  don't  know  how  long. 

Q.  How  long  had  he  resided  in  that  precinct  after  the  election  ? — A.  I  could  not  say 
how  long.  I  could  say  if  I  had  my  little  book,  because  he  has  purchased  some  little 
things  in  the  store  which  I  keep. 

Q.  Well,  give  your  best  recollection  whether  it  was  a  week,  a  month,  or  longer? — 
A.  I  could  not  say ;  such  things  as  that  I  pay  very  little  attention  to.  I  could  not  say 
•what  month,  what  week,  or  day  he  left  after  the  election. 

Q.  About  how  far  did  he  reside  from  your  store  during  his  stay  there  at  that 
time? — A.  He  lived  awhile  within  about  a  mile  of  the  store,  and  afterward  he  moved 
to  a  place  about  three  and  a  half  or  four  miles  from  my  store.  That  was  the  place 
from  where  he  moved  away  the  last  time. 

Q.  Were  you  not  a  Democrat,  and  working  quite  actively  for  the  success  of  the 
Democratic  ticket  in  that  precinct  in  the  last  November  election  ? — A.  I  was  and  did. 

Q.  Did  you  know  that  Methvin's  vote  was  challenged,  and  that  there  was  quite  a 
contest  before  the  board  of  election  between  the  Republicans  and  Democrats  as  to 
whether  Methvin  should  be  allowed  to  vote  or  not? — A.  I  heard  some  discussion 
among  the  members  of  the  board  upon  his  vote  being  challenged.  They  took  his  oath, 
and  he  swore  that  he  only  went  to  Arizona  for  a  temporary  purpose.  That  is  as  near 
as  I  can  remember.     The  board,  after  swearing  him,  took  his  vote. 

Q.  Was  there  not  considerable  discussion  before  the  board  by  the  Republicans  and 
Democrats  who  were  not  members  of  the  board,  and  did  not  each  party  urge  their 
claims — the  Republicans  that  he  had  no  right  to  vote,  and  the  Democrats  that  he  had 
a  right  to  vote  ? — A.  Well,  there  was  a  discussion — talk.  The  Democrats  claimed  that 
he  had  a  right  to  vote,  and  that  he  had  not  lost  his  residence  by  simply  being  absent 
temporarily.  The  Republicans  insisted  that  he  had  no  right  to  vote.  I  think  that 
the  most  of  the  talk  was  done  by  a  man  who  had  not  known  Mr.  Methvin  previous  to 
his  going  to  Arizona. 

Q.  Were  you  not  one  of- the  Democrats  that  insisted  that  he  had  a  right  to  vote? — 
A.  No. 

Q.  Was  he  a  Democrat? — A.  I  don't  know  that  I  could  swear  that  he  was  a  Demo- 
crat.    He  has  voted  the  Democratic  ticket. 

Q.  Didn't  you  believe  him  to  be  a  Democrat  at  that  time? — A.  I  could  not  say; 
that  is  a  qaestion  that  no  man  can  teU. 

Q.  Didn't  you  furnish  him  the  ticket  or  ballot  for  that  election? — A.  I  furnished  all 
the  Democratic  tickets  that  were  voted  that  day. 

Q.  Do  you  know  what  ticket  he  voted  that  day? — A.  I  do  not,  positively. 

Q.  Have  you  any  reason  to  know,  either  positively  or  otherwise;  if  so,  wh»t  are 
they  ? — A.  No ;  I  don't  know  whether  I  have. 

Q.  Have  you  learned  since  that  day  how  he  voted,  in  any  way? 

(Question  objected  as  not  proper  in  form  and  hearsay  in  its  character.) 

A.  I  have  not  had  any  conversation  with  him  with  regard  to  it. 

Q.  Have  you  learned  in  any  other  way? — A.  I  never  made  any  inquiry. 

This  man  bad  left  the  State  to  make  his  home  in  Arizona.  He  had 
no  present  purpose  of  returning  to  California.  He  clearly  had  lost  his 
residence  in  that  State,  and  did  not  return  more  than  30  days  before  the 
election. 


WIGGINTON    VS.    PACHECO.  51 

The  following  is  the  law  of  the  State,  sec.  1239,  subdivisions  6  and  7 

6.  If  a  person  reuiove  to  another  State  with  the  intention  of  making  it  his  residence, 
he  loses  liis  residence  in  this  State. 

7.  If  a  person  remove  to  another  State  with  the  intention  of  remaining  there  for  an 
indeiinite  time,  and  as  a  place  of  present  residence,  he  loses  his  residence  in  this  State, 
notwithstanding  he  entertains  an  intention  of  returning  at  some  future  period. 

It  is  quite  clear  that  this  man  voted  illegally  for  Wigginton,  and  his 
vote  should  be  rejected. 

It  is  conceded  by  the  majority  that  in  La  Graciosa  precinct  one  vote 
was  counted  for  Wigginton  that  should  have  been  counted  for  Pacheco. 
In  this  we  concur. 

CONCLUSION. 

The  result  of  the  foregoing  is  as  follows: 

By  the  returns  Pacheco  has 19, 104 

Add  on  account  of  La  Graciosa 1 

19, 105 
Deduct  eight  illegal  votes. , 8 

19, 097 

Wigginton  by  return  has 1 19, 103 

Deduct  on  account  of  La  Graciosa 1 

19,102 
Deduct  illegal  votes  as  follows,  four  of  which  are  conceded  by  majority 11 

19,091 
Pacheco's  majority 6 

We  therefore  recommend  the  adoption  of  the  following  resolutions : 
Resolved,  That  Romualdo  Pacheco  is  entitled  to  a  seat  in  this  House 
as  a  Representative  in  the  Forty -fifth  Congress  from  the  fourth  Con- 
gressional district  of  California. 

Resolved^  That  Peter  D.  Wigginton  is  not  entitled  to  a  seat  in  this 
House  as  a  Representative  to  the  Forty-fifth  Congress  from  the  fourth 
Congressional  district  of  California. 

JKO.  T.  WAIT. 
FRANK  HISCOCK. 
H.  PRICE. 
J.  M.  THORNBURGH. 

I  concur  in  the  report  of  the  minority  as  to  Waterman  and  Scott.  I 
am  clearly  of  opinion  that  they  were  legal  voters,  and  that  their  votes 
should  be  counted  for  Pacheco,  the  contestee. 

E.  JNO.  ELLIS, 
•  .  Member  of  Committee. 

I  concur  in  the  report  of  the  minority  that  the  vote  of  Charles  Gil- 
bert should  not  be  deducted  from  Pacheco,  the  evideuce  being  iusoffi- 
cient  to  show  that  his  vote  was  cast  for  Pacheco. 

MILTON  A.  CANDLER. 


52  DIGEST    OF    ELECTION    CASES. 

THOMAS  M.  PATTERSON  vs.  JAMES  B.  BEIiFORD. 

The  State  of  Colorado. 

This  case  arises  out  of  the  two  elections  for  Representative  in  Congress  from  Colo- 
rado; the  contestee  claiming  to  have  been  elected  at  an  election  held  October  3, 
1876,  and  the  contestant  on  November  7,  1876.  The  question  being  as  to  which 
of  those  days  was  the  day  prescribed  by  law  for  holding  such  election. 

Seld,  That  the  act  of  Congress  of  March  3,  1875,  which  modifies  section  25  Revised 
Statutes  so  as  not  to  apply  to  any  State  whose  constitution  must  be  amended  in 
order  to  effect  a  change  of  the  election  of  State  oflficers,  in  no  way  related  to  Col- 
orado. 

The  provisions  of  law  which  fix  the  time  and  place  of  holding  elections  are  manda- 
tory ;  and  the  election  held  in  Colorado  on  November  7,  1876,  having  been  con- 
ducted in  accordance  with  the  general  election  laws  of  the  State,  and  on  the 
day  prescribed  by  law  for  holding  such  elections,  was  the  only  legal  election  for 
Representative  in  Congress. 

The  House  adopted  the  majority  report  December  13, 1877. 
Thomas  M.  Patterson  sworn  in. 


December  6)  1877. — Mr.  John  T.  Harris,  from  the  Committee  on 
Elections,  submitted  the  following 

BEPORT: 

The  Committee  on  Elections,  to  whom  teas  referred  the  subjects  embraced 
in  the  following  resolution  of  the  House,  namely — 

Resolved,  That  the  certificate  presented  by  James  B.  Belford  and  the  certified  ab- 
stracts of  votes  cast  upon  the  7th  day  of  November,  A.  D.  1876,  for  Representative  to 
the  Forty-fifth  Congress,  and  accompanying  papers,  presented  by  Thomas  M.  Patter- 
son, upon  which  each  claims  the  ofiSce  of  Representative  to  the  Forty-fifth  Congress 
of  the  United  States  from  the  State  of  Colorado,  be  referred  to  the  Committee  on 
Elections,  to  be  appointed  hereafter,  with  instructions  to  said  committee  to  report 
either  as  to  the  prima,  facie  right  or  final  right  of  said  claimants,  as  the  committee 
shall  deem  proper,  and  that  neither  claimant  be  sworn  in  until  said  committee 
reports — 

submit  the Jollowing  report: 

The  right  of  each  of  the  parties  to  the  contest,  in  this  case,  turns 
upon  the  question  as  to  whether  the  3d  day  of  October  or  the  7th  day 
of  November,  1876,  was  the  day  prescribed  by  law  for  holding  the  elec- 
tion in  the  State  of  Colorado  for  a  Representative  in  this,  the  Forty- 
fifth  Congress. 

James  B.  Belford  claims  a  seat  in  this  House  by  virtue  of  an  election 
in  the  State  of  Colorado  on  the  3d  day  of  October,  1876,  and  Thomas 
M.  Patterson  claims  a  seat  by  virtue  of  an  election  held  in  said  State  on 
the  7th  day  of  November  thereafter. 

The  respective  claimants  appeared  before  the  committee  and  sub- 
mitted able  and  exhaustive  arguments  upon  the  facts  and  the  legal 
questions  involved. 

Your  committee  are  relieved  from  the  necessity  of  passing  upon  many 
of  the  facts  involved  in  the  case  by  the  following  stipulation,  sfgnedby 


PATTERSON    VS.    BELFORD.  53 

the  respective  parties,  and  filed  as  a  part  of  the  record  iu  the  case 
(page  7) : 

Stipulaliou  as  to  votes  cast  at  Xoveniber  election  for  Representative  to  the  Forty-fifth  Con- 
gress. 

In  the  matt«r  of  Representative  to  the  Forty-fifth  Congress  from  the  State  of  Colo- 
rado. 

Thomas  M.  Patterson  ) 

vs.  >  Claimants. 

James  B.  Belford.      ) 

It  is  hereby  mutually  agreed  and  stipulated  between  the  said  Thomas  M.  Patterson, 
of  the  one  part,  and  the  said  Jamea  B.  Belford,  of  the  other,  that  if  laws  were  in  force 
and  by  virtne  of  which  an  election  might  have  been  legally  held  in  the  State  of  Colo- 
rado upon  the  7th  day  of  November,  A.  D.  1876,  for  Representative  to  the  Forty-fifth 
Congress  from  said  State,  then  and  in  that  event  the  folloxcing  number  of  votes  werelegally 
cast  by  qualified  electors,  at  an  election  held  in  said  State  upon  the  saidlth  day  of  November, 
A.  D.  1376  for  said  Representative  to  the  Forty-fifth  Congress,  and  which  votes  were 
divided  among  the  persons  respectively  voted  for  upon  said  day,  for  said  office,  as 
follows : 

Whole  number  of  votes  cast  for  Representative  to  the  Forty-fifthCongress,  thirty- 
eight  hundred  and  twenty-nine  (3,829),  and  of  which 

Thomas  M.  Patterson  received  thirty-five  hundred  and  eighty  (3,580). 

James  B.  Belford,  one  hundred  and  seventy-two  (172). 

Scattering,  seventy-seven  (77). 

And  in  view  of  the  foregoing,  it  is  further  stipulated  and  agreed  that  all  registry- 
lists  and  poll-books  of  said  election,  and  the  returns  and  abstracts  of  votes  cast  thereat, 
and  which  accompany  the  testimony  in  said  case,  and  are  produced  by  the  said  Thomas 
M.  Patterson  for  the  purpose  of  establishing  the  number  of  votes  so  cast  at  the  said 
election,  may  be  omitted  in  the  printing  of  the  said  testimony,  the  statement  concern- 
ing said  votes  hereinbefore  made  to  be  taken  upon  the  condition  first  hereinbefore 
mentioned  by  the  House  of  Representatives  and  the  Committee  on  Elections  of  said 
House  fl«  a  full,  true,  and  correct  account  of  the  same. 

In  witness  whereof  we  have  hereunto  affixed  our  hands  this  2d  day  of  November, 
A.  D.  1877. 

THOMAS  M.  PATTERSON. 
JAMES  B.  BELFORD. 

It  is  also  admitted  that  Mr.  Belford  received  a  majority  of  the  votes 
cast  on  the  3d  day  of  October,  and  if  that  were  the  day  prescribed  by 
law  for  holding  the  election  for  Kepresentative  in  the  Fortj'-fifth  Con- 
gress from  Colorado,  then  Mr.  Belford  is  entitled  to  the  seat. 

The  question  has  also  been  raised  and  considered  by  the  committee 
as  to  whether  either  of  said  days  was  the  day  prescribed  by  law,  and 
whether  any  legal  election  has  been  held  in  said  State  for  JBepresent- 
ative  in  the  Forty-fifth  Congress. 

The  following  facts  are  established  beyond  controversy : 

1.  That  the  secretary  of  state  did,  on  the  3lst  day  of  August,  1876, 
issue  his  proclamation  (printed  Record,  page  138)  notifying  the  people 
that  there  would  be  an  election  on  the  3d  day  of  October,  1876,  for  State 
officers  and  for  "one  Representative  for  the  unexpired  term.  Forty-fourth 
Congress";  that  this  proclamation  made  no  mention  of  the  election  of  a 
Representative  in  the  Forty-fifth  Congress;  and  that  the  sherifts  of  the 
several  counties  of  the  State  promulgated  like  proclamations  and  notices. 

2.  That  on  the  14th  day  of  Sei)tember,  1876,  the  secretary  of  state 
issued  his  proclamation  (printed  Record,  page  254)  giving  notice  of  an 
election  to  be  held  November  7,  1876,  for  a  Representative  from  the 
State  at  large  for  the  Forty-fifth  Congress ;  that  no  other  officers  were 
to  be  elected  at  such  election,  and  that  the  sherifls  of  the  several  coun- 
ties issued  like  notices  iu  their  several  counties. 

3.  That  these  proclamations  by  the  secretary  of  state  and  the  sheriflfe 


54  DIGEST  OF  ELECTION  CASES. 

of  the  several  counties  were  the  only  notices  published  by  legal  author- 
ity, or  otherwise,  relating  to  said  elections  until  after  the  election  on 
the  3d  day  of  October. 

4.  That  the  names  of  both  contestant  and  contestee  were  printed  gen- 
erally upon  the  tickets  used  at  the  election  on  the  3d  day  of  October 
for  both  the  Forty -fourth  Congress  (unexpired  term)  and  the  Forty-fifth 
Congress;  but  there  was  no  agreement  between  the  respective  claim- 
ants or  their  friends  as  to  whether  the  3d  day  of  October  was  the  day 
prescribed  by  law  for  holding  the  election  for  a  Representative  in  the 
Forty-fifth  Congress. 

5.  That  on  the  10th  day  of  October,  one  week  after  the  election  on  the 
3d  day  of  that  month,  J.  C.  Wilson,  chairman  of  a  State  political  com- 
mittee favoring  the  election  of  Mr.  Belford,  issued  a\y  address  (Record, 
pp.  45-47)  calling  on  the  friends  of  Mr.  Belford  to  pr  epare  by  registra- 
tion and  otherwise  for  the  election  on  the  7th  day  of  November. 

6.  That  on  the  16th  day  of  October  the  secretary  of  state  issued  a 
proclamation  withdrawing  his  proclamation  of  September  14,  which 
gave  notice  of  the  election  on  the  7th  November. 

7.  That  on  the  14th  day  of  October,  the  said  J.  C.  Wilson,  on  behalf  of 
Mr.  Belford,  withdrew  his  name  from  any  further  candidacy  for  Con- 
gress, claiming  that  he  had  been  elected  on  the  3d  day  of  October  to 
the  Forty-fifth  Congress,  as  well  as  to  the  unexpired  term  of  the  Forty- 
fourth  Congress,  and  advised  Mr.  Belford's  friends  to  take  no  part  what- 
ever in  the  election  on  the  7th  day  of  November. 

8.  That  the  votes  cast  at  the  election  on  the  7th  day  of  November 
were  counted  by  the  proper  oflBcers,  in  eleven  counties,  and  transmitted 
to  the  secretary  of  state,  but  were  not  canvassed  by  that  officer,  or  by 
any  State  canvassing-board ;  that  in  the  other  fifteen  counties  of  the 
State  no  abstracts  of  the  votes  cast  were  sent  to  the  secretary  of  state 
by  the  «ounty  clerks;  but  the  stipulation  filed  by  the  parties  to  the  con- 
test, and  above  set  forth,  shows  the  true  result  of  the  votes  actually 
cast  in  the  whole  State. 

There  are  no  material  facts  in  the  case  that  are  disputed. 

Your  committee  are  of  opinion  that,  so  far  as  the  facts  are  concerned, 
the  election  on  the  3d  of  October,  and  also  that  on  the  7th  of  Novem- 
ber, were  sufficiently  regular  to  constitute  a  valid  election  of  a  Repre- 
sentative in  the  Forty-fifth  Congress  from  the  State  of  Colorado;  and 
the  only  question  about  which  there  can  be  any  doubt  is,  as  to  which  of 
those  days  was  the  day  prescribed  by  law  for  holding  such  election. 

There  was  no  notice  given  for  holding  an  election  on  the  3d  day  of 
October  for  a  member  of  the  Forty-fifth  Congress.  But  the  law  is  well 
settled  that  where  the  time  and  place  for  holding  an  election  are  fixed 
by  statute,  any  voter  has  a  right  to  take  notice  of  the  law,  and  to  de- 
posit his  ballot  at  the  time  and  place  appointed,  notwithstanding  the 
officer,  whose  duty  it  is  to  give  notice  of  the  election,  has  failed  in  that 
duty.  (Cooley,  Constitutional  Limitations,  603;  McCrary  on  Elections, 
sec.  118.)  There  was  no  canvass  of  the  votes  cast  on  the  7th  day  of 
November  by  the  State  canvassing-board,  but  Mr.  Patterson  produces 
certified  copies  of  the  abstracts  of  the  votes  which  are  on  file  in  the 
ofifi(  e  of  the  secretary  of  state  of  Colorado,  and  also  proof  of  the  number 
of  votes  cast  in  the  several  counties  of  the  State.  Nothing  is  better 
settled  than  this,  that  the  failure  of  a  board  of  canvassers  to  canvass 
the  votes  and  declare  the  result  does  not  invalidate  an  election  other- 
wise regular  and  valid. 

The  important  and  controlling  question  in  the  case  is,  therefore,  this: 
Whether  the  3d  day  of  Octob«r  or  tlie  7th  day  of  November  was  the 


PATTERSON    VS.    BELFORD.  55 

time  prescribed  by  law  for  holding  the  election  for  a  Eepresentative  from 
Colorado  in  the  Forty-fifth  Congress. 

Upon  this  point  your  committee  invite  attention  to  the  following  pro- 
visions of  law  and  their  proper  construction. 

1.— THE  ACTS  OF   CONGRESS. 

The  twenty-fifth  section  of  the  Revised  Statutes  is  as  follows: 

The  Tuesday  next  after  the  first  Monday  in  November,  in  the  year  eighteen  hundred 
and  seventy-six,  is  established  as  the  day,  in  each  of  the  States  and  Territories  of  the 
United  States,  for  the  election  of  Representatives  and  Delegates  to  the  Forty-fifth 
Congress;  and  the  Tuesday  next  after  the  first  Monday  in  November,  in  every  second 
year  thereafter,  is  established  as  the  day  for  the  election,  in  each  of  said  States  and 
Territories,  of  Representatives  and  Delegates  to  Congress  commencing  on  the  fourth 
day  of  March  next  thereafter. 

Your  committee  are  of  the  opinion  that  the  twenty-sixth  section  of 
the  Revised  Statutes,  in  reference  to  the  filling  of  vacancies  in  Con- 
gress, has  no  application  to  the  case  of  the  election  of  the  first  Repre- 
sentative in  Congress  to  which  any  new  State  may  be  entitled,  and 
that  the  first  election,  if  for  an  unexpired  term,  is  not  in  any  sense  the 
filling  of  a  vacalicy,  as  provided  for  in  said  twenty-sixth  section  of  the 
Revised  Statutes. 

Your  committee  are  also  of  the  opinion  that  the  act  of  March  3, 1875, 
which  modified  the  twenty-fifth  section  of  the  Revised  Statutes  so  as 
not  to  apply  to  any  State  whose  constitution  must  be  amended  in  order 
to  effect  a  change  of  the  election  of  State  officers  in  such  States,  in  no 
way  related  to  the  State  of  Colorado. 

2. — THE  ENABLING  ACT. 

If  Colorado  has  been  exempted  from  the  operations  of  the  twenty- 
fifth  section  of  the  Revised  Statutes,  such  exemption  results  from  the 
sixth  section  of  the  act  entitled  "An  act  to  enable  the  people  of  Colo- 
rado to  frame  a  constitution  and  State  government  and  for  the  admis- 
sion of  such  State  into  the  Union  on  an  equal  footing  with  the  original 
States,"  approved  March  3,  1875.  The  sixth  section  of  the  said  act  is 
as  follows : 

That  until  the  next  general  census,  said  State  shall  be  entitled  to  one  Represent- 
ative in  the  House  ot  Representatives  of  the  United  States,  which  Representative, 
together  with  the  governor  and  State  and  other  officers  provided  for  in  said  constitu- 
tion, shall  be  elected  on  a  day  subsequent  to  the  adoption  of  the  constitution,  and  to 
be  fixed  by  said  constitutional  convention;  and  until  such  State  officers  are  elected 
and  qualified  under  the  provisions  of  the  constitution,  the  Territorial  officers  shall 
continue  to  discharge  the  duties  of  their  respective  offices. 

A  similar  provision  was  contained  in  the  enabling  act  of  Nevada  and 
other  States.  The  sixth  section  of  the  Nevada  act,  approved  March  21, 
1864,  is  as  follows : 

Sec.  6.  And  be  it  further  enacted,  That  until  the  next  general  census  shall  be  taken, 
said  State  of  Nevada  shall  be  entitled  to  one  Representative  in  tlie  House  of  Repre- 
sentatives of  the  United  States,  which  Representative,  together  with  the  governor  and 
State  and  other  officers  provided  for  in  said  constitution,  may  be  elected  on  the  same 
day  a  vote  is  taken  for  or  against  the  proposed  constitution  and  State  government. 

It  is  clear  and  unmistakable  that  this  section  refers  only  to  tl)e  first 
election  to  be  held  in  the  State,  and  that  the  Representative  in  Con- 
gress to  be  elected  at  that  time  was  only  to  be  elected  for  a  constitu- 
tional term,  and  not  for  the  whole  period  of  the  decade  until  the  next 
general  census.    The  intention  of  Congress  in  the  case  of  Nevada  was 


56  DIGEST  OF  ELECTION  CASES. 

evidently  to  pro\'ide  for  the  election  at  the  first  election  of  the  member 
of  Congress  to  which  the  State  might  then  be  entitled  under  the  con- 
stitution and  laws. 

A  similar  provision  in  the  Colorado  act  should  be  construed  in  like 
manner,  unless  there  is  something  in  the  text  or  context  which  warrants 
a  different  construction. 

A  careful  analysis  of  the  sixth  section  of  the  Colorado  act  is  necessary 
to  a  clear  understanding  of  its  meaning  and  scope : 

That  until  the  next  general  census,  said  State  shall  he  entitled  to  one  Representative  in  the 
House  of  Representatives  of  the  United  States. 

This  language  evidently  refers  only  to  the  number  of  Eepresent- 
atives  to  which  the  State  is  to  be  entitled  until  the  next  general  census — 
one  Eepresentative,  as  distinguished  from  two  or  more. 

The  words  ^^  which  Representative^^  evidently  refer  to  the  one  Eepre- 
sentative which  the  State  is  entitled  to  elect  at  the  first  election.  In 
the  Nevada  act  this  construction  will  not  be  disputed,  and  was  actually 
carried  into  effect  by  the  action  of  Congress  and  the  people  of  that  State. 
The  language  of  the  Nevada  and  the  Colorado  acts  is  precisely  the  same 
on  this  point,  and  a  construction  which  applied  to  the  one  applies 
equally  to  the  other.  K  it  be  contended  that  the  words  "  which  Eep- 
resentative" referred  to  the  Eepresentative  to  which  the  State  was  en- 
titled until  the  next  general  census,  the  provision  would  be  unconsti- 
tutional and  void ;  for  the  Constitution  of  the  United  States  (Art.  I, 
sec.  2)  provides  that — 

The  House  of  Representatives  sLall  be  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  States. 

Hence  it  cannot  be  supposed  that  Congress  intended  to  authorize  the 
•  people  of  Colorado  to  do  an  unconstitutional  thing ;  namely,  to  elect  a 
Eepresentative  for  more  than  two  years. 

And  if  such  had  even  been  the  plain  language  of  the  section,  it  would 
be  good  only  to  the  extent  of  its  coustitutioualit}  ;  that  is,  for  the  first 
term,  or  part  of  a  term,  that  might  be  filled  at  the  first  election  of  State 
*  officers. 

Let  us  proceed  further : 

Which  Representative,  together  with  the  governor  and  State  and  other  officers  provided  for  in 
said  constitution,  shall  be  elected  on  a  day  subsequent  to  the  adoption  of  the  constitution,  and 
to  be  fixed  by  said  constitutional  convention. 

It  is  evident  that  the  day  to  be  fixed  by  the  constitutional  convention 
was  that  upon  which  the  first  State  officers  were  to  be  elected;  for  the 
subsequent  part  of  the  section  leaves  no  doubt  upon  the  point : 

And  iinHl  such  Slate  officers  are  elected  and  qualified  under  the  provisions  of  the  consti- 
tution, the  Territorial  officers  shall  continue  to  discharge  the  duties  of  their  respective  offices. 

The  words  "such  State  officers"  refer  to  the  State  officers  mentioned 
m  the  first  part  of  the  section,  and  it  is  absurd  to  suppose  that  the 
Territorial  officers  should  hold  office  after  the  first  officers  elected  un- 
der the  new  State  constitution  should  be  elected  and  qualified.  The  sec- 
tion is  relieved  from  all  doubt  on  this  point.  Hence  the  election-day 
which  Congress  authorized  the  constitutional  convention  to  fix  was  tho 
day  upon  which  the  first  set  of  State  officers  of  the  new  State  were  to 
be  elected,  and  it  was  upon  that  same  daj^  that  the  one  Eepresentative 
in  Congress  to  which  the  State  might  be  entitled  was  to  be  elected,  for 
the  words  "which  Eepresentative"  and  the  words  "the  governor  and 
State  and  other  officers"  all  relate  alike  to  the  i)hrase  "shall  be  elected 
on  a  day  subsequent  to  the  adoption  of  the  constitution,  and  to  be  fixed 
by  said  constitutional  convention." 


PATTERSON  VS.  BELFORD.  57 

,  3. — THE  PROVISION  OF  THE  CONVENTION. 

The  constitutional  convention  of  Colorado  evidently  construed  the 
sixth  section  of  the  enabling  act  as  only  authorizing  it  to  fix  the  time 
for  holding  the  first  election  of  a  Representative  in  Congress.  The  pro- 
vision of  the  constitution  of  Colorado  on  this  subject  is  as  follows: 

Cue  Representative  in  the  Congress  of  the  United  States  shall  be  elected  from  the 
State  at  large,  at  the  first  election  under  the  constitution,  and  thereafter  at  such 
times  and  places  and  in  such  manner  as  may  be  prescribed  by  law.      (Sec.  44,  Art.  5.) 

If  it  were  constitutional  for  Congress  to  confer  upon  the  Colorado 
convention  the  power  to  fix  the  time  for  holding  Congressional  elections, 
and  if  Congress  had  actually  authorized  the  convention  of  Colorado  to 
do  so,  yet  the  convention  failed  to  fix  a  time,  except  for  the  first  election. 
Thereafter  the  election  was  to  be  held  "  at  such  times  and  places  and  in 
such  manner  as  may  be  prescribed  by  law."  It  will  not  be  contended 
by  any  one  that  the  mere  authorizing  of  the  constitutional  convention  to 
fix  the  time  for  holding  Congressional  elections  actually  repealed  the 
time  already  fixed  by  Congress  without  the  constitutional  convention 
having  exercised  the  authority  conferred  upon  it.  A  power  of  attorney 
authorizing  an  agent  to  sell  certain  lands,  does  not  transfer  the  title 
from  the  principal  to  the  agent;  and  .if  the  agent  fails  to  make  the  sale 
which  he  was  authorized  to  make,  there  has  never  been  a  ehange  of 
ownership.  So  if  Congress  could  confer  upon  any  other  body  power  to 
repeal  an  act  of  Congress,  in  its  discretion,  and  if  such  body  should  fail, 
or  refuse  to  make  the  repeal,  the  act  would  continue  in  force,  just  as  if 
the  authority  had  not  been  given. 

4. — REPEALS  BY  IMPLICATION. 

If  section  6  of  the  enabling  act  did  work  a  repeal  of  the  twenty- 
fifth  section  of  the  Revised  Statutes,  such  effect  can  only  be  given 
to  it  by  implication.  But  the  well  established  rule  of  construction  is 
this,  that  one  statute  is  not  to  be  construed  as  the  repeal  of  another  if 
it  be  possible  to  reconcile  the  two  together.  (McCoul  vs.  Smith,  1  Black, 
459.)  And  the  Supreme  Court  has  also  held  that  "  a  repeal  by  implica- 
tion is  not  favored ;  the  leanings  of  the  courts  is  against  the  doctrine,  if 
it  be  possible  to  reconcile  the  two  aets  of  the  legislature  together."  (1 
Black,  U.  S.  R.,  470.)  "  Before  there  is  a  repeal  by  implication  there 
must  be  such  repugnancy  that  the  two  statutes  cannot  stand  together 
or  be  consistently  reconciled."  (Marlot  vx.  Lawrence,  1  Blatchford,  Ct. 
Ct.,  608.)  See,  also,  Mr.  Justice  Story  in  Wood  vs.  The  United  States 
(15,  Peters,  363),  where  this  doctine  is  clearly  stated  and  cogently  applied 
to  a  similar  case  of  construction.  It  will  not  be  prejtended  that  there  is 
a  positive  repugnance  between  the  sixth  section  of  the  enabling  act  and 
the  twenty-fifth  section  of  the  Revised  Statutes.  The  two  sections  can 
stand  together  and  be  consistently  reconciled.  It  is  not  only  possible 
to  reconcile  the  two  sections,  but  it  is  only  by  ''an  ingenious  course  of 
argument"  that  any  repugnance  is  made  possible. 

5. — A  LAW  OF  CONGRESS  THE  SUPREME  LAW  OF  THE  LAND. 

From  the  foregoing  it  will  appear  that  the  twenty-fifth  section  of  the 
Revised  Statutes,  which  fixed  the  Tuesday  next  after  the  first  Monday 
in  ^November,  1876,  as  the  day  for  electing  Representatives  to  the  Forty- 
fifth  Congress  in  all  the  States  of  the  Union,  was  not  repealed  as  to 


58  DIGEST    OF    ELECTION    CASES. 

Colorado  by  the  sixth  section  of  the  enabling  act,  or  iti  pnrsuance 
thereof.  Congress  having,  in  the  exercise  of  its  constitutional  power, 
fixed  the  time  for  holding  the  election  for  Kepresentatives  in  the  Forty- 
fifth  Congress  in  all  the  States,  from  the  moment  of  the  passage  of  the 
act  of  Congress  it  became  and  was  engrafted  upon  the  statutes  of 
every  State  in  the  Union,  and  it  required  no  auxiliary  State  legisla- 
tion to  give  effect  to  the  national  statute.  But  the  election  laws  of  the 
several  States  which  fixed  the  places  and  prescribed  the  manner  of 
such  elections  were  not  affected,  altered,  or  repealed ;  and  the  national 
statute  fixing  the  time  and  the  State  statutes  fixing  the  places  and 
prescribing  the  manner  of  holding  the  Congressional  elections,  formed 
a  complete  election  machinery  for  the  election  of  Representatives  ia 
Congress. 

6. — ELECTION-LAWS  OF   COLORADO. 

The  schedule  to  the  Colorado  constitution  (section  1)  provides  that  all 
laws  in  force  in  Colorado  at  the  adoption  of  the  constitution  should  re- 
main in  force  until  altered  or  repealed  by  the  legislature.  It  is- not  dis- 
puted that  there  was  a  well-defined  and  perfect  code  of  election-laws  in 
force  in  Colorado  at  the  time  of  the  adoption  of  the  constitution.  In 
pursuance  of  these  laws,  the  State  election  and  the  election  for  Repre- 
sentative in  Congress  for  the  unexpired  term  of  the  Forty-fourth  Con- 
gress were  held  on  the  3d  day  of  October,  1876,  and  Mr.  Belford  does  not 
question  the  validity  of  such  laws,  for  he  claims  his  own  election  on  the 
3d  of  October,  1876,  to  this  Congress,  by  virtue  of  an  election  held  in 
pursuance  thereof.  These  State  laws  provided  fully  for  the  places  and 
prescribed  the  manner  in  which  "all  general  and  special  elections'^ 
should  be  held  in  the  State.  There  were,  then,  in  force  in  the  State  of 
Colorado,  on  the  7th  day  of  November,  1876,  laws  providing  a  full,  com- 
plete, and  perfect  election  machinery  for  electing  a  Representative  to 
the  Forty-fifth  Congress — the  time  fixed  by  Congress,  and  the  places 
and  manner  provided  by  the  State  statutes. 

7. — LIGHT  VOTE  POLLED. 

Objection  has  been  made  to  the  seating  of  Mr.  Patterson,  upon  the 
ground  that  there  was  a  light  vote  polled  at  the  I^ovember  election, 
compared  with  the  vote  at  the  October  election.  But  Mr.  Belford  can- 
not complain  of  this,  nor  can  his  political  supporters.  For  his  name 
was  withdrawn  from  the  canvass  three  weeks  before  the  November  elec- 
tion, and  his  supporters  were  advised  not  to  participate  in  the  election. 
The  absence  of  a  contest  would  naturally  result  in  a  light  vote.  At  the 
recent  election  for  governor  and  other  State  officers  in  the  State  of  Vir- 
ginia, there  were  polled  in  the  city  of  Richmond  less  than  two  thousand 
votes  out  of  an  aggregate  voting  population  of  thirteen  thousand. 
There  was  no  contest  between  opposing  forces,  and  a  light  vote  was  the 
result.  But  no  one  will  seriously  contend  that  this  impaired,  in  the 
slightest  degree,  the  validity  of  the  election.  The  law  is  well  settled  on 
this  point.  Mr.  McCrary,  in  his  work  on  the  law  of  elections,  states  the 
rule  thus  (section  448) : 

If  an  election  is  held  according  to  law,  and  a  fair  opportunity  is  presented  to  all 
voters  to  participate,  those  who  do  not  vote  are  bound  by  the  result. 

In  the  case  of  Rex  vs.  Munday  (2  Couper,  238),  Lord  Mansfield,  in 
delivering  the  opinion  of  the  court,  said : 

Upon  the  election  of  a  member  of  Parliament,  where  the  electors  must  proceed  to 
an  election  because  they  cannot  stop  for  that  day  to  defer  it  to  another  time,  there 
must  be  a  candidate  or  candidates :  and  in  that  case  there  is  no  way  of  defeating  the  elec- 
tion of  one  candidate  }nopoaed  hut  hij  voting  for  anothtr. 


PATTERSON   VS.    BELFORD.  5^ 

In  the  case  of  The  Commonwealth  vs.  Read  (Brightly's  Election  Cases, 
130-1),  this  rule  is  recognized  to  the  fullest  extent.  In  this  case  it  was 
the  duty  of  the  board  of  county  commissioners,  under  the  statute,  to  elect 
a  county  treasurer.  The  board  consisted  of  twenty  members,  all  of 
whom  were  present,  but  a  controversy  arose  among  them  as  to  the  man- 
ner of  voting,  whether  viva  voce  or  by  ballot,  and  only  one  of  their  num- 
ber, Abraham  Miller,  voted  by  ballot,  while  the  others  voted  viva  voce. 
The  statute  required  the  election  to  be  by  ballot,  and  by  virtue  of  this 
one  vote  Reade  claimed  to  be  elected.  The  court  instructed  the  jury  as 
follows: 

In  all  our  public  elections  tliose  who  neglect  or  refuse  to  vote  according  to  law  are 
bound  by  the  votes  of  those  who  do  vote,  no  matter  how  small  a  minority  those  who 
do  vote  are  of  the  whole  constituency.  It  is  an  historical  fact  that  about  forty  thou- 
sand electors  who  voted  for  one  or  the  other  of  the  candidates  for  governor  at  the  late 
election  did  not  cast  any  vote  for  or  against  the  amended  constitution,  and  yet  that  in- 
strument has,  by  a  comparatively  small  minority,  become  the  supreme  law  of  the  land. 
The  result  of  our  opinion  is  tliat  if  you  are  satisfied  from  the  evidence  that  Abraham 
Miller  tendered  a  vote  by  ballot  for  the  defendant,  and  that  his  vote  by  ballot  was  re- 
ceived as  such,  then  has  the  defendant  sustained  his  plea  of  having  been,  on  the  Ist 
of  April  last,  duly  elected  county  treasurer. 

A  former  Committee  of  Elections  of  this  House  (Nineteenth  Congress, 
Ist  session),  in  the  case  of  Biddle  and  Richard  vs.  Wing  (Clark  and 
Hall,  page  507),  laid  down  the  rule  which  has  always  been  recognized. 
The  report  in  that  case  held  that — 

The  law  appoints  a  particular  time  and  place  for  the  expression  of  the  public^voice* 
When  that  time  is  jiast  it  is  too  late  to  inquire  who  did  not  vote,. or  the  reason  why 
The  only  question  now  to  be  determined  is  for  whom  the  greatest  number  of  legal  vote 
have  been  given. 

The  small  vote  on  the  7th  of  November  in  Colorado  was  not  the  result 
of  intimidation  of  voters;  but,  on  the  contrary,  the  supporters  of  one  of 
the  claimants  of  the  seat  voluntarily  absented  themselves  from  the  elec- 
tion by  preconcerted  arrangement,  and  for  the  very  purpose  of  invalidat- 
ing the  election,  so  far  as  it  was  in  their  power  to  do  so  by  their  absence. 
Conceding  that  there  was  an  honest  ditference  of  opinion  among  the 
voters  of  Colorado  as  to  the  legal  day  for  the  election,  some  believing 
the  3d  day  of  October  and  others  the  7th  day  of  November  to  be  the  law- 
ful day,  yet  it  will  not  be  pretended  that  the  proper  construction  of  an 
act  of  Congress  is  to  be  determined  by  the  voters  of  a  particular  district. 
The  provisions  of  law  which  fix  the  time  or  place  of  holding  elections 
are  mandatory.  As  to  the  time  of  election,  the  day  cannot  be  changed 
even  by  the  consent  of  all  the  voters.     (McCrary,  sec.  114.) 

Ignorance  of  the  proper  time,  or  a  misunderstanding  of  the  law  on 
the  part  of  a  portion  of  the  electors,  will  not  deprive  those  who  do  un- 
derstand the  law  and  who  do  act  upon  the  day  prescribed  by  law,  from 
their  righf  to  vote  and  control  the  election.  It  is  not  denied  that  the 
election  on  the  7th  day  of  November  was  conducted  in  accordance  with 
the  general  election-law  of  the  State;  that  all  electors  who  desired  to  do 
so  were  permitted  to  vote,  and  that  the  canvass  and  result  were  honestly 
made  and  published. 

CONCLUSION. 

Mr.  Patterson  having  received  a  majority  of  all  the  votes  cast  at  the 
election  on  the  7th  day  of  November,  1876,  in  the  State  of  Colorado,  for 
Representative  in  the  Forty-flfrh  Congress,  and  that  being  the  day  pre- 
scribed by  law  for  holding  such  election,  your  committee  recommend 
the  adoption  of  the  following  resolution : 

Resolved,  That  Thomas  M.  Patterson  is  entitled  to  a  seat  in  this  House 


60  DIGEST  OF  ELECTION  CASES. 

as  the  Representative  in  the  Forty-fifth  Congress  from  the  State  of  Col- 
orado. 
All  of  which  is  respectfully  submitted. 

JOHIS^  T.  HAERIS. 

WILLIAM  M.  SPRINGER. 

MILTON  A.  CANDLER. 

JAC.  TURKEY. 

THOS.  R.  COBB. 

JERE.  N.  WILLIAMS. 

E.  JNO.  ELLIS. 

I  reserve  the  right,  in  a  report  hereafter  to  be  filed,  to  assign  my  own 
reasons  for  agreeing  with  the  conclusions  of  the  above  report. 

E.  JNO.  ELLIS. 


Mr.  John  T.  Wait,  from  the  Committee  on  Elections,  submitted  the 

following  as  the 

VIEWS   OF  THE  MINORITY. 

The  undersigned,  from  the  Committee  on  Elections,  dissenting  from 
the  views  of  a  majority  of  your  committee,  submit  the  following,  in  the 
contested-election  case  from  the  State  of  Colorado. 

In  determining  who,  if  any  one,  as  a  Representative  from  Colorado, 
is  entitled  to  a  seat  in  the  House,  two  questions  must  be  considered : 

1st.  Did  Congress  empower  the  constitutional  convention  to  fix  the 
time  at  which  the  member  to  this  Congress  from  that  State  should  be 
elected? 

2d.  If  this  power  was  conferred  by  Congress  on  the  convention,  did 
that  body  execute  it  % 

The  section  of  the  enabling  act  bearing  on  the  question  of  Colorado's 
representation  in  Congress  reads  as  follows :  * 

Sec.  6.  Until  tlie  next  general  census  said  State  shall  be  entitled  to  one  Repre- 
sentative in  the  House  of  Representatives  of  the  United  States,  which  Representative, 
together  with  the  governor  and  other  State  officers,  shall  be  elected  on  a  day  subse- 
<iuent  to  the  adoption  of  the  constitution,  and  to  be  fixed  by  said  constitutional  con- 
vention. 

That  the  convention  was  to  have  power  over  the  Representative  men- 
tioned in  this  section  is,  it  seems  to  us,  entirely  certain.  The  only  words 
of  limitation  in  the  provision  and  upon  the  grant  of  power  are  "  until 
the  next  general  census."  Certainly  there  is  nothing  in  the  section 
which  limits  the  election  of  the  Representative  mentioned,  therein  to 
the  unexpired  term  of  the  Forty-fourth  Congress,  nor  is  there  any  lan- 
guage which  limits  it  to  the  first  Representative  to  be  elected. 

The  words  "  which  Representative "  relate  to  the  Representative  or 
representation  the  incoming  State  would  be  entitled  to  until  the  next 
census,  and  the  day  subsequently  referred  to  to  be  designated  for  elec- 
tions refers  to  a  day  or  period  of  time  periodically  recurring. 

To  section  6  of  the  enabling  act,  as  above  quoted,  should  be  added: 

And  till  such  State  officers  are  elected  and  qualified  under  the  provisions  of  the 
constitution,  the  Territorial  officers  shall  continue  to  discharge  the  duties  of  their 
respective  offices. 

It  is  claimed  this  language  i)roves  only  one  set  of  State  officers  and 
one  election  are  referred  to  in  the  section. 


PATTERSON   VS.    BELFORD.  61 

It  seems  to  us  the  whole  object  of  the  above  clause  is  to  indicate 
when  the  Territorial  abdicate  in  favor  of  the  State  officers.  If  it  read 
"until  State  officers  are  elected,"  omitting  the  "  such,"  the  above  argu- 
ment would  not  be  made.  Then  to  what  does  "  such  "  refer  ?  Our  un- 
derstanding is,  the  object  of  the  preceding  provisions  of  the  section  in 
reference  to  elections  was  to  provide  the  Representative  should  be 
chosen  with  the  State  officers,  until  the  next  general  census,  and  in 
speakiug  of  State  officers  it  refers  to  all  in  their  respective  lines  of  suc- 
cession until  then. 

Doubtless  the  section  provides  for  a  first  election,  and  it  contemplates 
an  "election  day"  will  be  fixed  for  future  State  officers  and  Kepre- 
sentatives — a  day,  as  we  have  before  remarked,  periodically  recurring 
for  future  elections,  and  the  only  effect  of  the  word  "  such,"  if  it  has 
any  special  effect,  is  with  more  particularity  and  certainty  to  refer  to 
State  officers  elected  under  the  constitution. 

We  think  it  does  not  strengthen  or  change  the  meaning  of  tlie  pro- 
vision. 

We  next  call  the  attention  to  section  44  of  the  constitution,  which 
provides  : 

One  Representative  in  the  Congress  of  the  United  States  shall  be  elected  from  the 
Stat«  at  large  at  the  first  election  under  this  constitution,  and  thereafter  at  such 
times  and  places  and  in  such  manner  as  may  be  provided  by  law. 

It  will  be  remarked  the  constitution  follows  the  words  of  the  enabling 
act  in  describing  who  is  to  be  elected.  "  One  Representative  "  •  •  "is 
to  be  elected." 

The  provision  was  prepared  in  the  light  of  and  with  the  act  of  Con- 
gress before  the  convention,  and  we  suppose  it  is  not  open  for  argument 
that  the  acceptance  of  a  power,  the  execution  of  a  grant  of  power,  in 
the  very  language  of  the  grant,  is  a  full  acceptance  and  a  complete 
execution. 

The  section  of  the  constitution  quoted  intended  to  and  did  provide 
for  the  election  of  a  Representative  to  Congresses  then  in  existence  or 
thereafter  to  be  held,  for  the  election  to  which,  according  to  the  usages 
and  laws  in  other  States,  and  in  the  light  of  the  usages  of  this  House 
and  the  laws  of  the  United  States,  the  day  indicated  would  be  reason- 
able and  proper ;  and  since  other  States  are  now  represented  here  by 
the  authority  of  elections  held  upon  or  about  the  day  fixed,  its  reason- 
ableness and  propriety  as  a  day  to  elect  a  Representative  from  Colorado 
to  the  Forty-fifth  Congress  cannot  be  questioned. 

The  day  is  indicated  by  section  7,  providing  for  general  elections 
the  fijst  Tuesday  of  October,  commencing  with  1876,  and  continuing 
to,  and  including,  187^,  the  first  Tuesday  in  October,  1876,  being  the 
first  election  within  the  language  of  the  forty-fourth  section  above 
quoted,  "  the  first  election  under  this  constitution." 

The  argument  against  this  construction  is,  that  "Representative,"  as 
there  used,  refers  to  a  Representative  to  the  Forty -fourth  Congress.  If 
read  thus,  we  submit  the  subsequent  lines  "  thereafter  at  such  times,"&c., 
means  "  Representatives  to  Congress,  thereafter,  at  such  times,"  &c. 
We  will  render  the  section  with  the  interpolations : 

One  Representative  in  (the  Forty-fourth  interpolated)  Congress  of  the  United  States 
shall  be  elected  from  the  State  at  large,  at  the  first  election  under  this  constitution, 
and  (Representatives  to  Congress  interpolated)  thereafter  (meaning  after  the  Forty- 
fourth)  at  such  times,  &c. 

Placing  in  the  provision  the  first  interpolation,  and  "  thereafter  "  must 
of  necessity  have  the  purpose  and  meaning  of  the  subsequent  inter- 
polation. 


62  DIGEST  OF  ELECTIOX  CASES. 

The  last  clause  of  the  section  "  thereafter  at  such  times,"  &c.,  "  as 
may  be  provided  by  law,"  does  not  provide  for  legislation  in  the  State  for 
a  future  election-day  to  the  Forty- fifth  Congress.  The  section  of  the 
enabling  act  we  have  cited  clearly  confines  the  election  to  the  day  of  the 
election  of  State  officers ;  and  that  having  been  by  the  convention  desig- 
nated the  first  Tuesday  in  October  in  each  year,  the  legislature  would 
have  no  power  to  change  it,  and  any  provision  in  the  constitution  pur- 
porting to  give  the  legislature  that  power  would  be  against  the  letter 
and  spirit  of  said  section  6  of  the  enabling  act,  and  if  said  clause  may 
seem  to  refer  to  future  elections,  if  read  by  itself,  the  provisions  for  gen- 
eral elections  we  have  cited,  subsequently  occurring  in  the  constitution, 
the  seeming  inconsistency  must  yield  to  a  harmonious  interpretation 
not  against  the  terms  and  spirit  of  the  enabling  act,  and  favorable  to 
the  conceded  right  of  the  State.  And  it  seems  to  us  the  forty-fourth  sec- 
tion is  not  a  limitation  upon  the  provision  for  general  elections,  but  on  the 
contrary,  if  it  provides  only  for  a  Representative  to  the  Forty-fourth  Con- 
gress, the  provision  for  general  elections  is  the  provision  it  contemplates 
for  Eepresentatives  to  future  Congresses,  and  by  force  of  it,  the  State 
could  elect  to  the  Fortj -fifth  Congress;  that  a  constitutional  conven- 
tion may  provide  for  the  election  of  a  Representative  other  than  to  the 
first  Congress  thereafter  has  been  heretofore  decided  by  the  House  of 
Representatives  after  due  consideration  and  by  a  non-partisan  vote. 
(See  Shiel  vs.  Thaver,  p.  357,  1st  sess.  37  Cong.,  Globe  Appendix,  1861, 
Vol.  45.) 

Our  conclusions  and  argument  are  supported  by  the  fact  if  Colorado 
could  not  elect  to  this  House  in  October,  1876,  she  could  not  at  all.  If 
we  are  right  in  the  construction  we  have  given  section  6  of  the  enabling 
act,  it  is  in  conflict  with  the  act  of  Congress  designating  the  first  Tues- 
day after  the  first  Monday  in  November,  biennially,  for  the  election  of 
Representatives,  and  being  the  later  law,  repeals  it  as  to  Colorado. 
And,  as  we  have  shown,  the  enabling  act  limited  the  election  of  Repre- 
sentatives to  the  day  of  the  election  of  State  officers,  the  first  Tuesday 
in  October  in  each  year. 

In  this  connection,  it  is  to  be  observed  the  convention,  further  on  in 
the  constitution,  provided: 

Sec.  16.  The  votes  cast  for  Representatives  in  Congress  at  the  first  election  held 
under  this  constitution  shall  be  canvassed  and  determined  in  the  manner  provided 
by  the  laws  of  the  Territory  for  the  canvass  of  votes  for  Delegates  in  Congress. 

Would  the  convention  have  used  the  word  ^^ Representatives ^"^  a  plural 
description,  if  it  contemplated  a  Representative  to  the  vacancy  in  the 
Forty-fourth  Congress  only  was  to  be  elected,  and  the  i^recediug  provis- 
ions only  provided  therefor? 

That  the  constitutional  convention  assumed  it  htid  full  jurisdiction  of 
the  question  and  intended  to  exercise  it  the  last-quoted  section  makes 
apparent;  it  continued  the  election-laws  of  the  Territory  to  the  elec- 
tion in  October  and  no  further,  and  by  the  provisions  of  the  constitu- 
tion fixing  the  time  of  the  assembling  of  the  first  legislature  of  the 
State  and  its  methods  of  enacting  laws,  it  was  impossible  for  it  to  pro- 
^'ide  election  laws  for  the  first  Tuesday  after  the  first  Monday  in  Novem- 
ber (see  constitution  of  Colorado);  the  inference  follows  it  assumed  a 
Representative  to  this  Congress  was  to  be  elected  in  October,  1876; 
otherwise  it  intended  not  to  make  provision  for  such  an  election. 

But  supposing  the  constitution  only  i)rovides  for  the  election  of  a 
Representative  to  one  Congress,  in  the  absence  of  language  showing 
another  intent  you  are  compelled  to  the  conclusion  it  was  for  the  one  it 
had  the  constitutional  right  to  provide  for,  and  when  Colorado  was  in- 


PATTERSON   VS     BELFORD.  63 

vested  with  ber  sovereignty  as  a  State,  as  to  her  there  wa«  a  vacancy 
in  the  Forty -fourth  Congress,  and  the  Constitution  of  the  United  States 
l)rovides  (see  next  to  hist  ckiuse  of  section  3,  article  1) — 

Wheu  vacancies  happen  in  the  representation  from  any  State,  the  executive  author- 
ity thereof  shall  issue  writs  of  election  to  till  such  vacancies. 

Certainly  the  election  in  October  was  not  by  virtue  of  any  proclama- 
tion, and  the  constitutional  way  of  tilling  a  vacancy  was  not  pursued, 
with  the  uncertainty  when  the  State  would  be  admitted.  With  the 
aforesaid  right  of  the  executive  power  to  provide  for  filling  a  vacancy, 
who  may  say  it  is  not  fairly  inferable  the  convention  provitled  for  elect- 
ing to  the  first  Congress  after  the  admission  of  the  State!  But  the 
State  of  Colorado  and  her  people  alone  are  interested  in  this  question. 
She  is  entitled  to  representation,  and  the  pro])er  and  only  function  of 
the  House  is  to  see  that,  within  the  principles  of  representation  under- 
lying the  legislative  branch  of  our  government,  she  has  her  constitutional 
right.  And  upon  this  comi)lex  question — for  we  suppose  it  must  be  com- 
plex, since  the  views  of  members  of  jour  commmittee  are  so  diverse — her 
people  have  put  a  construction. 

We  suijpose  it  to  be  well  settled  in  cases  of  the  doubtful  construction 
of  a  statute  involving  the  rights  of  the  people,  and  onlj'  their  rights  as 
distinguished  from  individual  rights,  the  adoption  of  a  particular  con- 
struction with  entire  unanimity  has  never  been  disturbed  by  a  power 
only  interested  to  preserve  the  rights  of  the  State;  certainly  never  when 
the  only  possible  injury  to  the  constituency  is  in  the  political  associa- 
tions of  the  individual  who  shall  represent  the  State  if  that  construction 
shall  remain  unreversed.  And  we  affirm  most  confidently  the  people  of 
Colorado  have  construed  the  provisions  hereinbefore  discussed  in  ac- 
cordance with  our  views;  and  upon  that  point  we  submit  a  few  of  the 
most  i^rominent  facts. 

The  call  for  the  Republican  convention  notified  the  delegates  that  a 
candidate  for  the  rorty-fourth  and  Forty-fifth  Congresses  would  be 
voted  for  at  the  October  election.  (See  answer  to  the  35th  direct  inter- 
rogatory to  Mr.  Wilson,  chairman  of  the  Republican  State  central  com- 
mittee, at  page  42  of  the  printed  testimony.) 

As  early  as  September  7,  lacking  but  four  days  of  one  month  before 
the  October  election,  Mr.  Patterson  was  engaged  with  his  friends  dis- 
tributing throughout  the  State  tickets  with  his  name  on  for  both  Con- 
gresses. (See  testimony  of  Wilbur  F.  Stone,  pp.  101  and  102.)  In  his 
letter  to  Mr.  Butler,  chairman  of  the  Democratic  State  central  com- 
mittee, written  on  the  7th  day  of  September,  he  advises  that  gentleman 
that  the  popular  belief  is  that  the  member  to  the  Forty-fourth  and 
Forty-fifth  Congresses  is  to  be  elected  at  the  October  election.  (See  tes- 
timony, p.  68.) 

The  Kansas  City  Times,  Colorado  edition,  a  representative  Demo- 
cratic paper  established  in  Colorado  to  advance  the  interests  of  the 
Democracy,  in  its  issue  of  the  16th  of  September,  advised  the  people  to 
vote  for  Mr.  Patterson  for  both  Congresses  at  the  October  election,  and 
repudiated  the  idea  that  the  member  to  the  Forty-fifth  Congress  could 
be  elected  at  any  other  time. 

General  Hughes,  the  Democratic  candidate  for  governor,  when  con- 
sulted by  his  friends  on  the  subject,  advised  them  to  place  Mr.  Patter- 
son's name  on  the  tickets  for  both  terms.  (See  p.  210.)  The  tickets 
were  so  printed  and  so  voted  in  every  county  in  the  State.  Twenty-six 
thousand  and  seventy-four  votes  were  cast  by  the  people  at  the  October 
election  as  against  3,580  cast  for  Mr.  Patterson  in  November. 


64 


DIGEST    OF   ELECTION    CASES. 


Some  stress  has  been  placed  on  the  fact  that  a  proclamation  was  is- 
sued notifying  the  electors  that  the  member  to  the  Forty-fifth  Congress 
would  be  elected  in  November.  It  is  evident  that  the  existence  of  this 
proclamation  had  little  or  no  effect  on  the  votes  cast  in  October.  Al- 
most from  the  moment  of  its  issuance  it  encountered  the  hostile  criti- 
cisms of  both  parties,  and  was  withdrawn  some  considerable  time  before 
the  JS^ovember  election.  It  was  issued  by  a  clerk  in  the  office  of  the 
secretary  of  state,  during  his  absence  from  Colorado,  and  against  his 
opinion  and  judgment. 

The  following  tables  of  the  official  «anvass  establish  most  completely 
the  unanimity  of  the  people  in  giving  to  the  provisions  of  the  constitu- 
tion the  construction  we  have  submitted. 

C^tificate  of  board  of  canvasaera. 

State  of  Colorado. 

To  his  excellency  Hon.  John  L.  Routt, 

Governor  of  the  State  of  Colorado : 
We,  the  undersigned,  composing  the  board  of  canvassers  of  the  said  State,  respect- 
fully represent  that,  in  the  discharge  of  the  duties  imposed  upon  them  by  the  consti- 
tution and  laws  of  said  State,  they  did,  in  your  presence,  on  the  28th  day  of  October, 
A.  D.  1876,  proceed  to  canvass  the  votes  polled  at  an  election  held  on  the  3d  day  of 
October,  A.  D.  1876,  for  Representative  to  the  Forty-fourth  and  to  the  Forty-fifth 
Congresses  of  the  United  States,  and  we  do  hereby  certify  that  we  have  carefully  ex- 
amined all  the  returns  from  the  board  of  canvassers  of  each  of  the  counties  in  said 
State,  as  returned  and  now  on  file  in  the  office  of  the  secretary  of  state,  and  that  the 
following  is  the  result  of  our  canvass  of  the  whole  number  of  votes  polled  for  said 
offices  at  said  election,  to  wit : 


For  Representative  in  Forty-fourth  Congress.     For  BepreaentaUve  in  Forty -fifth-  Congresi. 


Arapahoe  County... 

Bent  County 

Boolder  County 

Con^os  County 

Clear  Creek  Comity. 

Costilla  County 

Douglas  Cotmty 

Elbert  County 

El  Paso  County 

Fremont  County 

Grand  County 

Gilpin  County 

Huerfano  County . . . 

Hinsdale  County 

Jefferson  County  . . . 

Lake  County 

La  Plata  County 

Larimer  County 

Las  Animas  County. 

Park  County 

Pueblo  County 

Rio  Grande  County . 
San  Jnan  Connty  ... 
Saguache  County  . . . 

Summit  County 

Weld  Connty 


Total  vote . 


13,308 


Arapahoe  County.... 

Bent  Connty 

Boulder  County 

Conejos  County 

Clear  Creek  County.. 

Costilla  County 

Douglas  Oounl^ , 

Elbert  County 

El  Paso  County 

Fremont  County 

Grand  County 

Gilpin  County 

Huerfano  County 

Hinsdale  County 

Jefferson  County  .... 

Lake  County , 

La  Plata  County 

Larimer  County 

Las  Animas  County  . 

Park  County 

Pueblo  County 

Rio  Grande  Cfounty.. 

San  Juan  County 

Saguache  County 

Summit  County 

Weld  County 


12,310 


-     H 


Totalvote l  13,438       12,584 


PATTiBSON    V8.    BELFORD. 


65 


In  testiniouy  wheroof  we  have  hereunto  set  our 
haucU  anil  causert  the  great  seal  of  the  State,  to  be 
atfixed  this  twentj- -eighth  day  of  October,  A.  D. 
Ib76. 

(Signed)  JOHN  TAFFB, 

Sec'y  of  ^taU. 
L.  C.  CUAKLES, 
A'tot!  Auditor. 

[bkal.] , 

StaU  Treat. 


In  testimony  whereof  we  liave  hereunto  set  our 
hands  and  caused  to  be  affixed  the  great  seal  of  the 
State  of  C(i)«(ra<lo  this  twenty-<!ighth  day  of  Octo- 
ber, A.  D.  1876. 

(Signed)  JOHN  TAFFE, 

Sec'y  of  State. 
L.  C.  CHARLES, 
State  Auditor. 

[8BAI.]  , 

State  Treat. 


More  votes  were  cast  for  the  candidates  for  the  Forty-fifth  Congress 
than  for  the  vacancy  in  the  Forty-fourth. 

To  further  show  the  character  of  the  contest,  we  call  the  attention  of 
the  House  to  the  following  extracts  from  the  testimony.  Mr.  Wilson 
testitied,  page  240:  "The  vote  polled  was  the  largest  ever  known  in  the 
State,  and  was,  in  my  judgment,  as  full  a  vote  as  was  ever  brought  out 
at  any  election  in  any  place." 

Mr.  Butler,  chairman  Democratic  Central  Committee,  testifies,  page 
63,  cross- interrogatories  9  aiidlO:  "It  was  the-first  State  election  occur- 
ring in  the  centennial  year  and  in  the  centennial  State,  and  both  parties 
macie  an  earnest,  tremendous  eifort  for  success."  And  again  he  says: 
"It  was  the  most  exciting  election  we  ever  had  in  Colorado,  or  would 
be  likely  to  have  for  many  years  to  come." 

General  Hughes,  Democratic  candidate  for  governor,  testifies,  page 
74:  "The  canvass  was  an  active  one,  both  parties  taking  a  great  in- 
terest in  it,  and  I  think  a  very  full  vote  of  both  parties  was  polled." 

The  result  of  this  "earnest  and  tremendous  effort  for  success"  made 
by  the  friends  of  Mr.  Patterson,  resulted  in  the  election  of  Mr.  Belford. 

To  show  the  contrast  of  the  October  and  November  elections,  we 
present  the  following  comparative  table  of  votes: 


Countiefl. 


Arapahoe  ... 

Beut 

Boulder 

Conejos 

Clear  iJreok  , 

Costilla 

Douglas 

Elbeit 

Kl  Paso 

Fremont 

Oraude 

Gilpin 

Huerfano  ... 
Hinsdale 


3,!)63 
C84 

2,605 
5(52 

2,098 
418 
614 
191 

1,114 
GUI 


1,771 

1, 021 

791 


^2 


574 
134 
302 


244  ' 


221 
109 


Counties. 


Jeflferson 

Lake 

La  Plata  . . . . 

Larimer 

Los  Animas. 

Park 

Pueblo 

liio  Grande.. 
San  Juan  ... 

Saguache 

Summit 

Weld 


Total 26,074  1      3,580 


lis 
111 


1,139 

350 

97 

673 

1,938 
713 

1,281 
433 
805 
496 
385 

1,232 


!2i2- 


20 
68 

"76 

322 

132 

45$ 

2» 


32 


4» 


It  has  been  suggested,  the  fixing  of  the  date  of  an  election  of  a  Rep- 
resentative to  Congress  by  a  constitutional  convention  can  only  be  justi- 
fied, and  is  justified,  by  the  necessities  of  the  case.  We  have  hereinl)e- 
fore  shown  no  legislative  provisions,  taking  into  account  the  time  the 
State  was  admitted  and  its  legislature  was  to  assemble,  could  have  been 
enacted  for  an  election  at  the  day  (Ihe  first  Tuesday  after  the  tir.>st 
Monday  in  November)  fl.xed  by  Congress,  and  therefore  the  same  law 
of  necessity  justified  as  well  the  exercise  of  the  right  of  fixing  the  day 
to  elect  to  the  Forty-tifth  Congress  as  to  the  vacancy  in  the  Forty  fourth. 
H.  l\Iis.  58^—5 


66  DIGEST    OF    ELECTION    CASES. 

We  most  revspectfally  recommend  the  adoption  of  tbe  following  reso- 
lution : 

Be  it  resolved,  That  tbe  Honorable  James  B.  Belford  is  tbe  duly- 
elected  Representative  in  the  Forty-fifth  Congress  from  tbe  State  of 
Colorado,  and  that  he  be  sworn  in  as  such  Representative. 

JNO.  T.  WAIT. 

J.  M.  THORNBURGH. 

FRANK  HISCOCK. 


The  undersigned,  a  member  of  tbe  Committee  on  Elections,  dissent- 
ing from  tbe  views  of  the  majority  of  the  committee,  desires  to  submit 
the  following  in  tbe  matter  of  the  contested  seat  of  a  Representative  of 
Colorado : 

Tbe  contest  between  James  B.  Belford  and  Thomas  M.  Patterson  for 
tbe  seat  to  which  one  Representative  of  Colorado  is  entitled  in  the 
P'orty-fifth  Congress  is  a  mixed  question  of  law  and  fact. 

At  a  general  election  held  in  tbat  State  on  tbe  3d  day  of  October,  A. 
1).  1876,  votes  were  cast  for  a  Representative  in  both  the  Forty-fourth 
and  Forty-fifth  Congresses.  A  little  over  twenty-six  thousand  votes 
were  polled  for  tbe  two  candidates,  which  is  admitted  to  be  a  full  vote 
for  the  State.  Tbe  vote  for  the  Representative  for  tbe  Forty- fifth  Con- 
gress, as  polled  and  returned,  was  a  little  larger  than  tbat  for  Represent- 
ative in  tbe  Forty-fourth  Congress.  There  is  no  reasonable  doubt  that 
both  political  parties  did,  in  fact,  cast  their  full  vote  at  tbat  election  for 
Representative  in  both  Congresses,  and  that  if  said  election  can  be  con- 
sidered as  a  lawful  election  for  a  member  of  the  Forty- fifth  Congress, 
James  B.  Belford  is  entitled  to  the  seat,  he  having  received  a  majority 
of  the  votes  cast.    As  to  this  there  is  no  dispute. 

Thomas  M.  Patterson,  who  received  a  minority  of  tbe  votes  cast  for 
Representative  in  the  Forty-fifth  Congress  at  the  election  above  men- 
tioned, seems  to  have  claimed,  prior  to  the  October  election,  tbat  no 
valid  election  for  the  present  Congress  could  be  held  in  October,  but 
that  the  7th  of  November,  the  day  fixed  by  Federal  statute  (if  such 
statute  controlled  the  matter)  was  the  day  on  which  tbe  election  for  the 
Forty-fifth  Congress  must  be  held.  He  accordingly  seems  to  have  taken 
steps  to  have  an  election  held  on  said  7th  of  November,  and  on  tbat  day 
3,829  votes  were  cast  for  Representative  in  this  Congress,  of  which  3,580 
were  cast  for  said  Patterson  and  172  for  said  Belford,  tbe  rest  scatter- 
ing. If  said  7tb  of  November  was  the  lawful  day  for  holdiug  said  elec- 
tion, and  if  a  real  election  was  then  held  by  the  people  of  Colorado, 
Thomas  M.  Patterson  is  entitled  to  tbe  seat,  he  having  received  nearly 
all  the  votes  cast. 

The  questions  of  law  are — 

I.  What  was  tbe  lawful  day,  if  any,  for  holding  an  election  in  Colo- 
rado for  Representative  in  the  Forty-fifth  Congress? 

II.  What  would  be  the  effect  of  a  general  participation  by  the  people 
of  the  State  in  an  election  for  Rei)re8entative  held  on  some  other  than 
tbe  lawful  day,  if  such  should  be  the  fact! 

The  question  of  fact  is — 

I.  What  was  the  general  understanding  and  conduct  of  the  people  of 
(!olorado  in  regard  to  tbe  elections  for  Representative  in  the  Forty-fifth 
Corgress,  held,  or  alleged  to  be  held,  on  the  3d  of  October  and  the  7th 
of  November,  respectively  f 

The  qvestions  of  law  : 


PATTERSON    VS.    BELFORD.  67 

I.  Ill  examiDin«r  antl  passing  upon  the  provisions  of  law  relating  to 
the  time,  if  any,  fixed  for  the  election,  it  is  necessary  to  begin  with  the 
i  Constitution  of  the  United  States.  Article  1,  section  2,  provides  that "  the 
ilouse  of  Representatives  shall  be  composed  of  members  chosen  every 
second  year." 

The  obligation  to  have  the  elections  biennial  is,  therefore,  fundamental, 
and  would  override  any  other  law,  either  Federal  or  State,  which  would 
seem  to  make  a  different  provision,  except  in  cases  of  vacancies  from 
any  State,  when  the  same  section  provides  that  the  "  executive  author- 
ity thereof  shall  issue  writs  of  election  to  fill  such  vacancies."  Ejs  neces- 
sitate rei,  elections  to  fill  fractious  of  a  term  cannot  be  biennial,  and  the 
fraction  may  be  never  so  small;  consequently,  the  law  must  be  held  to 
permit,  and  custom  has  certainly  established  it,  that  elections  for  a  full 
and  fractional  term  may  be  held  on  the  same  day.  No  other  clause  of 
the  Constitution  is  found  to  treat  of  the  subject  of  fractional  terms,  and 
the  word  "  vacancies"  in  the  section  referred  to  is  that  under  which  all 
legislation  on  this  subject  has  been  authorized,  including  the  act  of 
Congress  of  February  2,  1872.     (Revised  Statutes,  sections  25  and  26.) 

Article  1,  section  4,  of  the  Constitution  provides  that  "  the  times, 
places,  and  manner  of  holding  elections  for  Senators  and  Representa- 
tives shall  be  prescribed  in  each  State  by  the  legislature  thereof;  but 
the  Congress  may  at  any  time  by  law  make  or  alter  such  regulations, 
except  as  to  the  place  of  choosing  Senators." 

This  section  manifestly  gives  to  tlie  legislative  department  of  the 
several  State  gov^ernments  primary  and  full  control  over  the  "  times, 
places,  and  manner  of  holding  elections"  for  Representatives  in  Con- 
gress, subject  only  to  such  limitation  or  interference  as  Congress  may 
affirmatively  enact,  and  subject  also,  of  course,  to  the  provisions  of  sec- 
tion 2  of  the  same  article,  before  examined.  Inasmuch  as  the  general 
power  over  the  subject  rests  with  the  legislative  departments  of  the 
States,  the  acts  of  Congress  cannot  be  held  to  have  wider  scope  than 
their  language  necessarily  means,  and  a  ca.sM«  omissus,  if  there  be  any, 
remains  under  State  control. 

Congress  has  provided  by  act  of  February  2, 1872  (Revised  Statutes, 
44  25  and  26),  the  times  of  holding  elections  for  Representatives  in  the 
several  States,  to  wit,  regularly  on  "  the  Tuesday  after  the  first  Monday 
tn  November,  in  every  second  year"  after  1876,  and  starting  with  that 
year ;  and  in  case  of  vacancy,  at  such  time  as  "  may  be  prescribed,  by 
the  laws  of  the  several  States." 

The  exceptions  to  this  rule,  made  by  any  other  acts  of  Congress  than 
the  Colorado  enabling  act,  need  not  now  be  considered,  as  it  is  not 
claimed  that  they  affect  Colorado. 

If,  therefore,  the  time  for  holding  elections  for  Representatives  in  the 
Forty-fourth  and  Forty-fifth  Congresses  were  to  be  determined  only  by 
the  provisions  of  law  thus  far  referred  to,  it  seems  logically  conclusive 
that  the  day  for  the  election  to  the  fractional  term  of  the  Forty-fourth 
Congress  would  be  determined  by  the  laws  of  the  State,  either  under 
the  twenty-sixth  section  of  the  United  States  Revised  Statutes,  or  under 
the  general  provisions  of  article  1,  sections  2  and  4,  of  the  Federal  Con- 
stitution, already  cited.  As  to  the  Forty-fifth  Congress,  it  would  be 
equally  conclusive  that  the  time  of  election  would  be  the  Tuesday  after 
tbe  first  Monday  of  November,  1876,  which  is  admitted  to  have  been 
on  the  7th  day  of  the  month. 

The  machinery  of  election  was  provided  by  the  Territorial  laws,  kept 
alive  by  the  new  State  constitution,  and  no  question  could  reasonably 


'68  DIGEST   OF    ELECTION    CASES. 

arise  as  to  the  legal  methods  by  which  the  will  of  the  people  might  be 
expressed. 

But,  under  its  authority  to  admit  new  States  into  the  Union,  Congress 
passed  an  "  enabling  act"  to  authorize  the  organization  of  a  State  gov- 
ernment for  Colorado,  which,  apart  from  all  other  legal  considerations, 
must  be  the  decisive  authority  in  this  case,  because  it  was  under  and  by 
virtue  of  it  that  Colorado  became  a  State  within  the  Union  at  all ;  and 
the  right  to  any  represent atiou  in  Congress  must  rest  upon  the  perform- 
ance of  tlje  conditions  and  the  pursuance  of  the  methods  provided  by 
that  act.  Again,  that  act,  being  subsequent  to  the  general  statute  of 
1872,  and  being  specifically  directed  to  the  case  of  Colorado,  must  be 
held  to  take  the  new  State  out  Irom  under  the  general  law,  as  far  as 
the  fair  intendment  of  the  language  of  the  enabling  act  would  do  so. 

The  sixth  section  of  this  act  of  Congress  reads  as  follows : 

Skc.  6.  Until  1  he  next  general  census  said  State  shall  be  entitled  to  one  Repre- 
sentative in  the  House  of  Representatives  of  the  United  States,  which  Representative, 
together  with  the  governor  and  other  State  officers,  shall  be  ele>  ted  on  a  day  subse- 
quent to  the  adoption  of  the  constitution,  to  be  fixed  by  said  constitutional  convention. 

In  thus  remitting  to  the  constitutional  convention  of  Colorado  the 
authority  to  fix  the  dav  for  election  of  Representative,  Congress  has 
distinctly  and  necessarily  abrogated,  in  the  case  of  that  State,  and  for 
such  period  as  is  named  in  the  act,  every  preceding  Federal  law  upon 
the  subject,  saving,  of  course,  the  provisions  of  the  Constitution.  Al- 
though article  1,  section  4,.of  the  United  States  Constitution  does  not 
iu  terms  name  constitutional  conventions  as  legislative  bodies  of  the 
several  Stales,  the  act  just  quoted  is  only  one  of  numerous  instances  in 
which  they  are  included  in  the  generic  term  "legislative"  by  legislative 
interpretation  iu  the  acts  of  Congress.  So  notorious  has  been  the 
custom  of  fixing  the  time  of  general  elections,  including  those  foi  l\ep- 
resentatives  in  Congress,  by  the  constitutions  of  the  States,  that  a  gen- 
eral exception  to  the  twenty-fifth  section  of  the  United  States  Revised 
Statutes  was  enacted  by  Congress  in  1875,  in  the  case  of  the  several 
States  whose  "constitutions  must:  be  amended"  to  make  them  accord 
with  the  act  of  Congress  fixing  the  Tuesday  after  the  first  Monday  in 
Kovember  as  the  day  of  electing  Representatives.  It  inust  therefore 
be  regarded  as  settled  tiiat  a  constitutional  convention  is  included 
"under  the  general  term  "legislative"  in  the  Constitution  of  the  United 
States,  aud  actsof  Congress  made  in  obedience  thereto. 

We  are  thus  brought  to  the  decisive  question.  What  is  the  extent  of 
the  ])Ower  over  elections  of  Representatives  relegated  to  the  legislative 
authority  of  Colorado  by  the  sect  ion  of  the  enabling  act  already  quoted? 

Tlie  State  is  declared  "entitled  to  one  Representative  until  the  next 
general  census." 

"One  Representative"  cannot  be  held  to  mean  the  same  individual 
during  all  the  time  named,  nor  that  he  is  to  be  elected  at  one  time  for 
the  whole  i)eriod.  The  constitutional  provisions  as  to  biennial  elec- 
tions, length  of  the  olticial  term,  an<l  Cractional  terms,  which  have 
already  been  quoted,  are  the  fundamental  law,  and  no  strain  need  be 
put  up()n  the  language  of  the  enjibling  act  to  make  it  accord  with  them. 

It  proviiles  that  at  all  times  "  untsl  ihe  next  general  census  "  (and,  by 
fair  implication,  until  the  results  of  sue!)  census  can  be  made  oflicially 
the  basis  of  a  new  rule),  Colorado  shall  be  "entitled  to  one  Representa- 
tive." If,  therefoie,  Mr.  Belford  were  the  J{e])resentative  in  the  Forty- 
lourth  Congress,  Mr.  Patterson  in  the  Forty-fifth,  and  any  other  citizen 
of  the  State  in  the  Fortj-sixth  or  subsequent  Congresses,  during  the 
period  stated,  no  one  would  dream  of  claiming  that  the  provision  tliht 


PATTERSON    VS.    BELFORD.  69' 

C/olorado  should  have  one  Represeutative  was  violated  because  three  or 
four  different  men  had  represented  the  State. 

But  how  would  it  be  as  to  the  time  of  electing  these  successive  Rep- 
resentatives ?  Ill  the  case  of  each  of  them  in  his  turn  but  one  pertinent 
<]uestion  could  be  put,  viz  :  Was  he  elected  "  on  a  day  subsequent  to  the 
adoption  of  the  constitution"  of  the  State,  and  "  fixed  by  said  cousti 
tutional  convention"?  To  claim  that  they  must  all  be  elected  in  one 
year  would  be  a  fault  in  logical  interpretation  of  precisely  the  same 
kiiul  as  to  say  that  they  must  all  be  the  same  individual. 

The  principal  i)roi>osition  of  the  said  sixth  section  is  that  Colorado 
iiball  have  one  Itepresentative.  The  qualifying  causes  are,  first,  that 
this  rule  shall  last  till  the  next  general  census;  and,  second,  that  such 
Representative  shall  be  chosen  on  a  day  fixt-d  by  the  constitutional  con- 
vention. Whoever  can  answer  the  description  given  in  these  three 
respects  is  the  lawful  Representative  of  Colorado,  and  none  other. 
Every  rule  of  logical  analysis  makes  the  qualification  that  this  shall  be 
the  rule,  "  until  the  next  general  census,"  apply  to  the  whole  of  the  sec- 
tion and  all  its  parts.  To  except  an.y  one  of  them  is  to  substitute  a  new 
law  in  the  place  of  that  which  we  find  on  the  statute-book. 

The  next  step  in  the  investigation  is  to  ask  what  the  constitutional 
convention  of  Colorado  did  in  the  jjremises. 

Section  44  of  the  State  constitution  is  that  which  covers  the  subject. 
It  declares  that  "  one  Represeutative  in  the  Congress  of  the  United  States 
shall  be  elected  from  the  State  at  large  at  the  first  election  under  this 
constitution,  and  thereafter  at  such  times  and  places  and  in  such  m^n- 
tier  as  may  be  provided  by  law." 

It  is  noticeable  that  in  this  section  the  term  "one  Representative"  is 
used  in  the  same  way  as  in  the  enabling  act,  and  the  narrow  interpre- 
tation which  would  insist  that  but  one  individual  could  be  meant,  or  that 
iin  election  but  for  one  term  could  take  place,  might  be  as  well  applied 
here  as  to  the  act  of  Congress,  except  that  the  concluding  clause, "  and 
thereafter  at  such  times  and  places,"  &c.,  fixes  beyond  cavil  the  mean- 
ing given  to  the  enabling  act  by  the  convention.  It  manifestly  intended 
to  cover  the  whole  period  over  which  it  could  have  jurisdiction  and 
refers  to  the  several  terms  of  office  during  which  Colorado  might  be 
entitled  to  but  one  Representative  "  at  large." 

This  section  does  not  name  the  day  of  either  of  the  elections,  but  they 
are  severally  -'fixed"  (to  use  the  word  found  in  the  enabling  act)  by 
reference  to  that  which  will  definitely  determine  the  time.  The  day  of 
the  first  election  for  Representative  is  to  be  that  of  "  the  first  election 
under  this  constitution,"  and  of  subsequent  ones  "as  may  be  provided 
by  law."  Under  tlie  inaxim  of  law  "  id  cerium  est^  quod  cerium  reddere 
poiesi,^^  this  reference  from  one  clause  of  the  fundamental  law  of  the 
State  to  another  which  names  the  day  for  the  first  election,  and  to  the 
ordinary  statute  law  for  the  days  of  subsequent  elections,  must  be  re 
garded  as  an  entirely  allowable  and  appropriate  method  of  exercising 
the  power  remitted  to  the  convention  by  the  enabling  act.  This  will 
appear  the  more  clearly  in  regard  to  the  reference  to  acts  of  the  legisla- 
ture, when  it  is  remen»bered,  as  has  been  noted  above,.that  the  Consti- 
rution  of  the  United  States  recognizes  the  power  over  such  matters  as 
being  in  the  "legislature"  of  the  State,  and  that  it  is  only  by  implica- 
tion (though  an  abundantly  strong  one)  that  the  power  can  be  considered 
as  vested  in  constitutional  conventions. 

There  can  hardly  be  need  of  stopping  to  meet  the  possible  objectiou 
that  the  i)hnise  "  i>rovided  by  law,"  as  found  in  the  State  constitution, 
means  Federal  law  and  not  State  laws.    The  most  casual  glance  at  con- 


70  DIGEST  OF  ELECTION  CASES. 

stitutioDB  of  the  several  States  of  the  Union  will  show  a  uniformity  and 
regnlarity  of  use  which  will  at  once  remove  any  doubt.  We  are  inter- 
preting the  fundamental  law  of  a  State ;  and  its  references  to  future  pro 
visions  of  law  which  it  authorizes,  and  which  will  depend  upon  it  for 
their  validity,  must  necessarily  look  to  the  statutes  of  the  State  enacted 
to  carry  into  eft'ect  the  more  general  provisions  of  the  constitution. 

The  forty-fourth  section  of  the  State  constitution  has  therefore  ex- 
hausted the  power  remitted  to  the  constitutional  convention  by  theenab 
ling  act,  and  it  only  remains  for  us  to  apply  its  provisions  to  the  contest 
before  us. 

It  is  an  admitted  fact  that  the  first  election  under  the  State  constitu- 
tion was  held  on  the  3d  day  of  October,  1876,  and  that  neither  in  the 
constitution  nor  in  any  law  of  Colorado  was  the  7th  day  of  November 
of  that  year  named  as  the  day  for  any  election  whatever.  The  conclu- 
sion is  therefore  inevitable  that  the  latter  day  was  not  a  lawfully-estab- 
lished day  for  the  election  of  a  Kepresentative  in  Congress  from  the 
State  of  Colorado. 

As  to  the  election  held  on  the  3d  of  October  it  is  equally  clear  that  it 
was  a  lawful  day  of  election  for  a  Representative  in  the  Forty-fourth 
Congress.    But  how  is  it  as  to  the  Forty-fifth? 

A  series  of  elections  for  "one  Representative"  in  Congress  was  mani- 
festly the  thing  provided  for.  The  only  natural  and  unstrained  inter 
pretatiou  of  the  forty-fourth  section  of  the  Colorado  constitution,  and 
the  only  one  thoroughly  in  harmony  with  the  principles  of  interpreta^ 
tioq  above  applied  to  the  enabling  act,  seems  to  be  that  the  first,  and 
the  first  only,  of  this  series  of  elections  should  take  place  on  the  3d  of 
October,  and  the  subsequent  ones  as  the  legislature  might  provide  by 
law.  It  would  have  been  quite  competent  for  the  constitutional  conven 
tion  to  declare  that  the  elections  for  the  fractional  term  in  the  Forty- 
fourth  Congress  and  the  full  term  in  the  Forty-fifth  should  be  filled  at 
the  same  election ;  but  it  did  not  do  so. 

It  has  been  argued  before  the  committee  that  there  was  not  time  for 
the  legislature  to  act  earlj'  enough  to  provide  an  election  for  the  Forty 
fifth  Congress,  and  hence  the  necessity  of  the  case  would  give  a  broader 
meaning  to  the  language  of  the  State  constitution.  The  necessity  is  not 
apparent.  The  State  legislature  was  to  meet  very  early  in  November, 
1876,  in  fact,  on  the  first  day  of  the  month.  The  Foity-fifth  Congress 
began  its  legal  term  on  the  4th  day  of  March  following,  though  it  wa« 
not  expected  to  assemble  till  the  3d  of  December,  1877,  and,  in  fact,  did 
not  assemble  till  the  15th  of  October.  There  was  no  lack  of  time  be 
tween  the  1st  of  November  and  4th  of  March  for  the  passage  of  an  act 
and  the  holding  of  an  election;  or,  if,  as  has  been  argued,  a  winter  elec- 
tion in  that  region  would  be  very  inconvenient,  it  might  have  been  fixed 
for  any  time  in  the  following  spring  or  summer  without  losing  a  day  of 
the  actual  session  of  this  Congress.  The  argument  "a6  inconvenienti" 
is  therefore  insufficient,  and  we  are  forced  to  tlie  conclusion  that  the  3d 
of  October,  1876,  was  not  the  day  in  fact  established  by  the  constitution 
or  the  laws  of  Colorado  for  holding  an  election  for  Representative  to  the 
Forty-fifth  Congress. 

It  follows,  from  this  reasoning,  that  no  election  for  a  member  of  this 
Congress  was  held  on  any  day  fixed  by  law  in  Colorado,  for  it  is  ad- 
mitted that  no  act  of  the  legislature  exists  iu  regard  thereto,  and  that 
no  other  election  has  been  held  than  those  purporting  to  be  on  3d  Octo 
ber  and  7th  November. 

But  it  is  argued  that  although  no  day  was  lawfully  fixed  for  such 
election,  the  action  of  the  people  of  the  State,  generally  taking  i>art  in 


PATTERSON    VS.    BELFORD.  71 

be  election  on  tbe  3d  October,  and  voting  for  a  Kepiesentative  in  tbe 
Pprty-fiftb  Con|i:ress,  ma^'  cure  any  illegality  as  to  tbe  day  and  consti- 
tute a  valid  title  to  tbe  seat. 

Before  we  can  intelligibly  apply  legal  principles  to  this  proposition, 
it  is  necessary  to  turn  to  the  question  of  fact,  aud  reduce  to  distinct 
form  a  few  decisive  points  in  the  history  of  the  case. 

1.  On  the  14th  September,  notices  of  an  eh>ction  for  Representative 
in  tlje  Forty-fifth  (.'ongress  were  issued  to  the  sheriffs  of  the  several 
counties  of  the  State  from  the  secretary  of  state's  office,  under  the  great 
seal  of  the  State,  and  published  in  the  newspapers.  Under  these  notices 
the  election  was  to  be  hehl  on  Ttb  November.     (Record,  j>.  31.) 

2.  In  pursuance  of  such  directions,  tbe  several  sheriffs  issued  their 
notices  forthwith,  ad  vertising  such  election  for  tbe  Ttb  November.  {Ibid.) 

3.  Tbe  proclamation  and  the  notices  under  it  continued  before  tbe 
public  irom  said  lotb  Sei)tember  past  the  election  on  3d  October,  and 
until  the  16tb  October,  when  it  was  recalled  by  another  proclamation 
from  tbe  secretary  of  state's  office,  hereinafter  quoted.  (Record,  pp. 
140,  141.) 

4.  Tbe  official  i>roclamation  and  sheriffs'  notices  for  the  October  elec- 
tion specified  a  Representative  for  the  Forty -fourth  Congress  only  to  be 
elected  at  that  time.     (Record,  pp.  18,  19.) 

o.  The  proclamation  for  tbe  Ttb  November  election  was  issued  from 
tbe  secretary  of  state's  office  by  bis  aj^sistant,  in  tbe  absence  and  dan- 
gerous illness  of  the  secretary  himself,  but  by  the  advice  of  tbe  gover- 
nor, the  United  States  district  attorney,  and  other  leading  men.  (Rec- 
ord, p.  20.) 

(5.  On  10th  October,  u  week  after  the  first  election,  tbe  Republican 
State  central  committee  issued  a  circular,  from  which  the  following  is 
an  extract : 

In  consequence  of  tin*  Icjjal  obstacles  surroniiding'the  election  for  member  of  Con- 
gress, it  was  deemed  advisalile  to  have  the  name  printed  twice  on  the  tickets  voted 
at  the  election  on  the  M  of  October,  aud  if  theJlecisiou  of  the  people  at  the  ballot-box 
on  the  third  instant  hail  been  against  the  Republican  candiilate,  it  was  the  intention 
of  the  party  to  withdraw  the  name  of  their  candidate,  and  make  no  contest  whatever 
for  a  seat  in  the  Forty-tifth  C'ongress.  The  Republicans  were  willing  to  abide  tbe  de- 
cisiitii  of  the  October  electiou,  and,  if  defeated  then,  to  make  no  contest  in  November, 
but  to  allow  that  election  to  go  by  default.  This  the  Democratic  party  of  Colorado 
seemed  to  be  unwilling  to  accede  to.  The  result  is  tliat  •  «  •  it  is  very  evident 
now  that  this  electiou  cannot  be  avoided,  and  it  is  for  the  Republicans  throughont 
the  State  to  determine  whether  we  shall  make  our  success  of  October  3  complete  by 
another  victory  on  Nov«Mnber  7.     (Record,  p.  4G. ) 

Before  following  tbe  history  further,  it  seems  proi)er  to  report  that 
tbe  facts  above  enumerated  incontestibly  show  that  the  people  of  Colo- 
rado were  officially  notified  in  such  form  that  they  were  legally  bound 
to  take  notice  that  tbe  election  on  tbe  3d  October  would  be  for  State 
officers  .and  for  a  member  of  the  Forty -fourth  Congress  only;  and  such 
notice  continued  public  uj)  to  the  day  of  tbe  election  itself.  Not  only 
can  ignorance  of  it  not  be  presumed;  it  is  directly  and  formally  rebutted. 
They  further  show  that  the  Republicat)  central  committee  did  not  un- 
derstand or  claim  that  the  October  election  was  a  legal  election  for 
member  of  tbe  Forty  fifth  Congress  as  late  as  the  10th  October,  but 
sjioke  of  the  placing  of  tbe  name  of  Representative  twice  on  the  ticket, 
as  done  by  them,  because  it  was  "deemed  advisable";  and  said  that  if 
their  candidate  had  received  a  minority  of  the  votes,  they  had  intended 
to  "  icithdratc'^  his  name,  '•^and  male  no  contest  zchatever  for  a  seat  in  the 
Forty-fifth  Congress.""  Such  language  from  the  committee  in  charge  of 
a  party's  canvass  is  the  strongest  jiossible  disproof  of  the  idea  that  they 


72  DIGEST    OF    ELECTION    CASES. 

or  the  public  regarded  the  voting  for  a  member  of  the  Forty-fifth  Con- 
gress in  October  as  anything  else  than  an  informal  attempt  to  save  time, 
expense,  and  trouble,  which,  as  they  themselves  sa3-,  their  opponents 
"  seemed  to  be  unwilling  to  accede  to." 

7.  On  the  13th  of  October  a  consnltation  was  had  between  promineqt 
Kepub'icaus  of  the  State,  in  consequence,  api)arently,  of  a  letter  to  the 
editor  of  the  Denver  ^'ews,  that  day  published  by  the  Ilun.  J.  B.  Chaflee, 
in  which  it  was  claimed  that  the  election  of  a  Kepreseutative  to  the  Forty- 
fifth  Congress  was  legal  and  complete  on  3d  October.  (Record,  \>p.  44, 
45.)  The  result  of  the  consultation  was  the  adoption  of  that  view  by 
those  present,  and  the  issuing  on  the  next  daj',  October  14,  of  a  new 
circular  by  the  Republican  central  committee,  withdrawing  that  of 
October  10,  and  recommending  liepublicans  to  take  no  part  in  the  elec- 
tion called  for  November  7.     (Record,  j)p.  47,  48.) 

8.  On  the  16th  October  a  new  proclamation  issued  from  the  office  of 
the  secretary  of  state,  under  the  great  seal,  withdrawing  former  procla- 
mation and  notice  for  the  election  of  November  7,  on  the  ground  that 
"it  appears  upon  further  examination  that  there  is  no  law  or  statute 
authorizing  said  proi>osed  election  to  be  held,  or  any  election  to  be  held 
in  the  State  of  Colorado  at  that  time."    (Record,  p.  140.) 

9.  To  the  circular  of  the  Republican  central  committee  of  14th  October 
the  Democratic  central  committee  responded  by  a  circular  dated  October 
16,  denying  that  the  election  of  October  3  was  legal  as  to  the  Represent- 
ative in  the  Forty-fifth  Congress,  and  insisting  on  the  election  for  7th 
November.  (Record,  pp.  69-71.)  This  was  followed  by  others  to  the 
«ame  purj)Ose  on  October  21  and  31.     (Record,  ])p.  75-78.) 

10.  At  the  October  election  both  ])arties  had  provided  tickets  with 
names  of  Representative  for  both  the  Forty-fonrth  and  Forty-litth  Con- 
gresses. The  number  of  votes  cast  has  ahead}-  been  stated.  Hugh  But- 
ler, chairman  of  Democratic- State  committee,  and  others  testify  that  the 
double  tickets  were  prepared  and  voted  at  tlie  October  election,  "  as  a 
matter  of  precaution  "  after  learning  that  the  Republicans  were  doing 
the  like  (Record,  p.  58).  That  the  opinion  had  become  general  that 
votes  would  be  cast  in  October  for  both  Congresses  was  stated  by  Mr. 
Patterson,  the  contestant,  in  a  letter  in  evidence,  dated  September  7 
(Record,  p.  68).  The  numerous  witnesses  who  testify  on  this  subject 
leave  the  reasons  for  this  action  vague  and  indefinite,  though  nothing 
appears  in  the  testimony  inconsistent  with  the  idea  that  there  was  an 
effort,  never  made  clear  or  binding,  to  agree  upon  some  mode  of  avoitl- 
ing  the  second  election  in  November.  The  Republican  secretitiy  of  state 
and  United  States  marshal  testify  that  on  October  3  it  was  generally 
understood  that  there  was  to  be  another  election  in  Noveuiber  ( Record, 
pp.  15,  52,  53,  54,  55).  On  the  other  hand  some  prominent  Democrats 
appear  subsequently  to  have  agreed  that  there  was  probably  no  au- 
thority for  the  November  election  (Record,  p.  27). 

It  is  no  doubt  the  rule  of  the  law  in  regard  to  elections  that  the  ex- 
pressed will  of  the  people  shall  be  followed,  if  it  be  reasonably  practica- 
ble to  construe  legal  provisions  so  as  to  carry  it  out. 

It  has,  however,  never  been  claimed  that  unofficial  committees  of  po- 
litical parties  could  abrogate  the  official  proclamations  of  State  officers, 
or,  in  the  presence  of  such  official  notice  to  the  contrary,  condense  two 
elections  into  one.  In  order  to  do  this  it  would  be  necessary  to  find 
that  the  law  was  clearly  in  accord  with  the  action  of  the  people  con- 
trary to  the  proclamation,  and  that  the  people  themselves  clearly  in- 
tended at  that  time  to  make  their  action  final  and  conclusive. 

As  has  been  already  shown";  the  law  did  not  fix  the  3d  of  October  as 


PATTERSON    VS.    BELFORD.  73 

the  day  to  elect  a  member  to  the  Forty-fifth  Congress,  and  the  over- 
whelming weight  of  proof  is  that  neither  the  people^  their  officers  of 
«tate,  nor  their  party  committees  regarded  the  October  election,  at  the 
time,  as  couclusive  and  final  in  this  respect. 

In  regard  to  the  7th  of  November  election,  the  day  was  not  only  not 
the  lawful  one,  as  we  have  above  shown,  but  the  State  officials  had  be- 
come convinced  of  this  and  withdrawn  the  election  proclamation  and 
notices. 

The  condition  of  the  public  mind  is  ])robably  best  described  by  the 
secretary  of  state,  Mr.  Clark,  who  testifies : 

Mauy  were  doiibtiug  the  legality  of  an  election  for  Kepresentative  in  the  Forty- 
fifth  Congress  on  the  7th  day  of  November,  others  claiming  that  it  would  be  a  mere 
matter  of  form  anyway,  because  there  was  some  kind  of  an  understanding  between 
Mr.  Belford  and  Mr.  Patterson  that  whichever  was  beaten  at  the  October  election 
would  not  be  a  contestant  against  the  other  at  the  November  election;  others  claimed 
that  only  a  member  to  the  Forty-fourth  Congress  could  be  elected  under  the  constita- 
tion,and  that  the  general  assembly  must  provide  by  law  for  thehohiing  of  au  election 
for  the  Forry-tifth  Congress.     (Record,  p.  16.) 

When  in  the  midst  of  the  public  uncertainty  thus  described,  in  which 
the  confusion  was  increased  by  the  acts  of  i)arty  committees,  prompted, 
by  the  fear  that  their  opponents  would  get  the  start  of  them,  an  election 
was  nominally  lield,  in  which  hardly  more  than  one-seventh  of  the  elect- 
ors took  part,  less  than  one-third,  even,  of  the  party  claiming  the  vic- 
tory, and  almost  none  of  their  opponents;  when  in  the  city  of  Denver, 
the  capital  of  the  State,  and  where  were  the  political  managers  and  com- 
mitteemen, the  proportion  of  votes  cast  was  not  larger  than  in  the  rest 
of  the  State;  and  when  in  eight  counties  there  was  not  even  a  show  of 
election,  it  would  be  doing  violence  to  language  anfl  to  justice  to  call 
th  e  result  an  expression  of  the  popular  will,  or  the  formalities  which  took 
place  an  election  by  the  people  of  the  State. 

Whether  we  regard  it,  therefore,  as  a  question  of  the  lawfully  estab- 
lished day,  or  of  a  real  and  general  election  defaeto  by  the  people,  it 
cannot  be  said  that  a  Representative  to  the  Forty-fifth  Congress  was 
chosen  in  Colorado  on  the  7th  of  November. 

The  opinion  of  the  last  class  of  people  referred  to  by  the  secretary  of 
state  in  his  testimony,  as  quoted  above,  seems  to  me  to  be  the  true  one, 
and  I  believe  that  ''the  general  assembly  of  Colorado  must  provide  by 
law  for  the  holding  of  an  election  for  the  Forty-fifth  Congress,"  and  that 
neither  contestant  nor  contestee  is  entitled  to  the  seat. 

I  would  therefore  respectfully  report  the  following  resolution,  which, 
at  the  proper  time,  1  shall  offer,  to  wit: 

Resolved^  That  no  valid  election  has  as  yet  been  held  in  Colorado  for 
Ivepresentative  in  the  Forty-fifth  Congress. 

J.  D.  COX. 


74  DIGEST    OF    ELECTION    CASES. 


JESSE  J.  FINITE Y  vs.  HORATIO  BISBEE,  JR. 

Second  Congressional  District  op  Florida. 

Oontestant  charges  that  returns  were  forged  aud  false,  that  the  election  ofiBcere 
were  guilty  of  frauds,  and  counted  too  many  votes  for  coutestee,  and  threw  out 
entire  polls  in  some  instances.  Contestee  claims  that  illegal  votes  were  cast  for 
contestant  by  non-registered  persons. 

Held,  That  where  the  result  at  a  poll  is  shown  by  the  returns  to  be  falst  and  frauda- 
leut,  and  it  is  impossible  to  ascertain  from  the  other  evidence  in  the  case  the  tma 
vote  of  said  poll,  the  vote  of  such  poll  must  be  entirely  rejected. 

"Where  persons  vote  without  challenge,  it  will  be  presumed  that  they  were  entitled  to 
vote,  and  that  the  sworn  ofiScersof  the  election  who  received  their  votes  performed 
their  dut3'  properly  and  honestly. 

Where  it  is  provided  in  a  registration  law  that  the  commissioner  shall  '*  examine  the 
list  of  registered  voters,  and  erase  therefrom  the  names  of  such  persons  as  are 
known,  or  may  be  shown  to  their  satisfaction  to  have  died  or  ceased  to  have  re- 
sided permanently  in  the  county,  or  otherwise  become  disqualified  to  vote";  and 
it  is  further  provided  that  "  if  the  vot^er,  on  offering  to  vote,  in  case  his  name  is  not 
found  on  the  registration  list,  will  take  an  oath  that  his  name  has  been  improperly 
struck  off,  and  shall  take  the  oath  required  to  be  taken  by  persons  whose  right  to 
vote  shall  be  challenged,  such  person  shall  have  the  right  to  vote";  and  such  per- 
son does  vote,  having  all  the  other  qualifications  of  a  voter,  and  his  name  is  found 
on  the  poll-list,  his  vote  will  be  presumed  to  be  legal  until  the  contrary  be  proven. 

The  House  adopted  the  majority  report,  February  20,  1879. 


Pebrijaby  6,  1879, — Mr.  Cobb,  from  the  Committee  on  Electious,  sub- 
mitted the  following 

RBPOBT: 

The  Committee  on  Elections,  to  whom  were  referred  the  papers  relating  to 
the  contested-election  case  in  the  second  Congressional  district  of  Florida, 
having  had  the  same  under  consideration,  submit  the  following  report: 

The  second  Congressioual  district  iu  the  State  of  Florida  is  composed 
of  the  counties  of  Alachua,  Baker,  Brevard,  Bradford,  Clay,  Columbia^ 
Duval,  Dade,  Hamilton,  Madison,  Marion,  Nassau,  Orange,  Putnam, 
Suwannee,  Saint  John's,  and  Volusia. 

The  record  iu  this  case  covers  972  pages,  the  brief  of  contestant  139 
pages,  and  the  brief  of  contestee  99  pages,  making  iu  all  1,190  pages  of 
printed  matter  which  your  committee  has  had  to  examine,  and  which 
has  been  done  with  great  labor. 

In  the  general  election  held  in  this  district  on  the  7th  day  of  Novem- 
ber, 1876,  Jesse  J.  Finley  and  Horatio  Bisbee,  jr.,  were  voted  for  to 
represent  said  district  in  the  Forty-fifth  Congress.  And  the  question 
is,  which  of  these  gentlemen  is  entitled  to  the  seat  ?    According  to  the 


FINLEY    VS.    BISBEE. 


75- 


retarns  of  the  precinct  officers  of  the  several  counties  in  said  district  the 
vote  was  as  follows : 


Connties. 

I 

Bisbee. 

^ 

1,255 
238 
111 
706 
315 
901 

1,468 

5 

614 

1,  082 
962 
670 
926 
617 
629 
508 
474 

1,972 
143 
56 
199 
126 
717 

2,331 

8 

329 

1,521 

1,548 
794 
194 
579 
456 
331 
172 

ir 

Baker         

Bratlfbrd     

Clay                                          

I>tival                        . 

4 

Dade     

Volaeia .-• 

Total  vote  for  each 

11,481 

11, 476 

This  return  was  acted  upon  by  the  canvassing-board  of  each  county 
and  the  State  board  of  canvassers.  And  after  making  several  changes, 
which  are  not  necessary  to  be  mentioned  here,  the  certificate  of  election 
was  issued  to  the  contestee,  and  he  was  sworn  in  and  now  occupies  the 
seat  in  this  House  from  the  second  district  of  Florida.  ^HjiP^ 

The  contestant  within  the  legal  time  filed  his  protest  and  notice  of 
contest,  averring  that  the  board  of  State  canvassers  had  been  guilty  of 
gross  frauds  in  canvassing  the  votes  of  said  Congressional  district,  mak- 
ing up  false  statements  by  which  the  votes  of  said  counties  were,  or  some 
of  them,  falsely  stated,  and  that  the  certificate  of  election  was  wrong- 
fully given  to  the  contestee,  &c. 

These  averments  need  not  be  noticed  by  your  committee,  as  they  do 
not  aflfect  the  merits  of  the  case  which  is  now  under  consideration.  The 
prima-facie  case  having  been  settled  by  the  House,  the  committee  has 
nothing  to  do  with  the  certificate ;  but  the  contestant  makes  averments 
in  his  notice  of  contest  which  reach  the  merits  of  the  case  before  us, 
the  substance  of  which  we  will  hereafter  give,  not  wishing  to  incumber 
tbis  report  with  a  copy  of  them  in  full.  The  notice  of  contest  and  the 
answer  thereto  are  not  as  carefully  drawn  as  they  should  have  been,  but 
in  the  opinion  of  your  committee  the  allegations  therein  are  suflBciently 
broad  and  specific  to  embrace  all  the  evidence  in  the  record  which  your 
committee  deem  necessary  to  consider  in  reaching  a  correct  decision  on 
the  merits. 

The  substance  of  the  allegations  in  the  notice  of  contest  which  we  con- 
sider material  may  be  briefly  stated  as  follows : 

1st.  That  the  returns  of  the  election  at  the  precinct  of  Archer  No.  2, 
in  the  county  of  Ala(;liua,  in  said  Congressional  district,  were  forged  and 
false ;  that  about  219  votes  were  falsely  and  fraudulently  added  to  the 
vote  of  contestee  by  the  election  officers  of  said  precinct  and  returned, 
which  were  canvassed  and  counted  by  the  county  and  State  boards  of 
canvassers. 

2d.  That  the  election  officers  who  conducted  the  election  at  Archer 
precinct  No.  2,  in  Alachua  County,  in  said  district,  were  guilty  of  fraud 
in  conducting  said  election,  and  made  false  and  forged  returns  of  the 
same,  thereby  making  it  impossible  to  arrive  at  the  true  vote  of  said  pre 
cinct,  and  demanding  that  the  vote  of  said  precinct  be  excluded. 


76  DIGEST    OF    ELECTION    CASES. 

3d.  That  tbe  election  officers,  in  canvassing  the  vote  for  Congress  iti 
said  district,  illegally  and  wrongfully  excluded  therefrom  all  the  votes 
cast  at  each  of  the  precincts  of  Darby ville  and  Johnson vilie,  in  the 
county  of  Baker,  and  demands  that  they  be  counted. 

4th.  That  the  election  officers,  in  canvassing  the  vote  for  Congress  in 
said  district,  illegally  and  wrongfully  excluded  therefrom  the  entire  poll 
at  Jasper  precinct  No.  2,  in  Hamilton  County;  that  the  true  number  of 
votes  cast  at  said  precinct  were  504,  of  which  320  w  ere  cast  for  contest- 
ant, and  184  for  contestee,  and  contestant  demands  that  the  same  be 
counted. 

5th.  And  contestant  asks  that  a  true  count  of  all  the  votes  be  made 
as  far  as  the  same  can  be  done  under  the  evidence,  and  insists  that  if 
this  is  done  it  will  entitle  him  to  the  seat. 

The  contestee  in  his  answer  sets  up  a  general  and  special  denial, 
and  avers,  by  way  of  counter  charges,  threats,  intimidation,  violence, 
and  repeating  at  various  polls  in  the  district  upon  the  part  of  tht- 
political  friends  of  the  contestant,  and  also  thai  a  large  number  of 
illegal  votes  were  cast  for  contestant  by  non-residents,  persons  con- 
victed of  crime,  minors,  non-registered  persons,  and  foreign-born  persons, 
who  did  not  at  the  time  of  voting  present  their  certiticate  of  natural- 
ization, or  a  certified  copj*  thereof,  or  a  duly  sealed  and  (Certified  copy  of 
their  declaration  of  intention  to  become  citizens  of  the  United  States. 

Your  committee,  after  this  summary  of  the  pleadings,  will  examine 
the  questions  of  law  and  facts  involved  in  the  issues,  and,  as  the  tabu- 
lated statement  given  above  arranges  the  counties  in  alphabetical  order, 
your  committee  will  consider  the  questions  arising  in  the  counties  in 
the  same  order ;  and, 

Ist.  As  to  Alachua  County,  Archer  precinct  No.  2:  It  is  alleged  by  the 
contestant  that  the  election  returns  from  this  precinct  shoukl  be  rejected, 
and  this  we  believe  is  conceded  by  contestee,  for  the  reason  that  said  re- 
turns were  forged,  and  do  not  show  the  true  vote.  The  returns  from  this 
precinct,  made  by  its  officers,  therefore,  are  to  be  considered  out  of  the 
case. 

The  contestant  further  alleges  and  insists  that  not  oidy  the  returns 
of  this  precinct  must  be  rejected,  but  that  the  entire  vote  of  the  same 
must  be  excluded  from  the  count,  for  the  reason  that  the  evidence  is 
not  such  as  to  enable  your  committee  to  determine  correctly  what  the 
true  vote  at  this  precinct  was.  But  he  insists  further  that  if  the  com- 
mittee conclude  that  the  vote  of  said  precinct  should  be  counted,  in 
that  case  the  vote  must  be  counted  as  follows  : 

For  contestee 180 

For  contestaut 141 

Contestee's  majority 39 

Because  he  claims  that  the  evidence  tends  more  strongly  to  8U|>i)ort 
this  conclusion.  Your  committee  are  fully  aware  of  the  importance  of 
the  decision  upon  these  questions,  for  upon  it  hinges  the  final  judgment 
in  this  case.  The  evidence  in  regard  to  this  poll  is  very  voluminous, 
-covering  nearly  300  pages  of  the  record,  the  result  of  the  examination 
of  over  300  witnesses  of  the  parties.  It  being  conceded,  as  wo  have 
already  said,  that  the  returns  must  be  thrown  aside,  on  the  ground  that 
they  are  false  and  forged,  and  your  committee  agreeing  with  that  view, 
we  are  compelled  to  look  to  the  other  evidence  in  the  case,  in  order  to 
ascertain  if  possible  what  was  the  true  vote.  If  the  true  vote  can  be 
ascertained  with  reasonable  certainty,  it  must  be  counted.  If  it  cannot 
be  so  ascertained  and  determined,  then  the  entire  vote  of  the  precinct 


FINLEY    VS.    BI8BEE.  77 

should  be  thrown  out,  and  nothing  counted  for  either  contestant  or 
coiitestee. 

The  evidence  proves  that  Green  R.  Moore,  K.  H.  Black,  and  Floyd 
Dukes  were  the  inspectors,  and  Thomas  H.  Vance  the  clerk,  of  the 
election  held  for  Congress  at  Archer  precinct  No.  2,  in  Alachua  County. 

Green  R.  Moore  testifies  that  there  was  a  poll-list  kept,  and  thinks 
the  names  of  all  who  voted  were  put  down  on  the  list;  says  Vance  kept 
it,  who  was  clerk ;  says  he  was  present  when  the  polls  were  closed,  and 
says  that  there  was  a  paper  there  which  was  signed  by  the  inspectors  in 
blank  for  the  returns ;  it  was  not  filled  out  when  signed.  lie  says  they 
counted  the  votes,  but  got  in  a  hurry,  as  it  was  late,  and  did  not  fill  up 
the  returns  with  the  number  of  the  votes,  but  just  signed  tlie  blank 
return.  Does  not  know  whether  the  return  so  signed  was  ever  filled  up 
or  not.  He  says  Thomas  IT.  Vance  took  charge  of  all  the  papers.  He 
took  all  the  papers  under  his  arm,  among  them  the  returns  of  said  poll. 
He  says  the  ballots  were  first  strung  on  a  string  and  then  said  Black 
corrected  them.  He,  witness,  held  the  ballots  up  and  Floyd  Dukes 
strung  them.  They  were  then  put  in  the  ballot-box  and  left  strung.  R. 
H.  Black  locked  the  box  and  gave  him,  witness,  the  key,  and  took  charge 
of  the  box.  The  returns  were  not  put  in  the  box.  Not  certain  the  box 
was  locked.  Box  fastened  together,  he  thinks,  with  screws.  He  says 
that  after  the  poll  was  closed  and  the  ballots  counted  the  result  was 
publicly  announced  by  R.  H.  Black.  He  is  certain  of  this  fact.  Black 
announced  that  Stearns  had  received  180  votes,  and  that  Drew  had  re- 
ceived 136  votes.  Stearns  was  the  Republican  candidate  for  governor, 
and  Drew  the  Democratic  candidate.  He  says  that  Black  announced 
that  there  were  318  votes  in  all  cast,  buthe  says  2  of  these  were  destroyed 
because  they  looked  like  two  tickets  were  folded  together.  He  says  that 
Black  announced  the  true  vote  and  gave  it  to  Samuel  C.  Tucker.  Says 
lie  is  positive  that  there  was  not  more  than  318  votes  polled  there  that 
day.  This  number  did  not  agree  with  the  number  of  ballots  strung  and 
counted  and  put  in  the  box.  Black  counted  277  tickets  in  all  that  were 
put  in  the  box.  Says  the  result  was  ascertained  by  counting  the  poll- 
list  and  tally  sheet  kept  by  the  clerk,  Vance  The  poll-list  and  ballots 
did  not  agree.  The  poll-list  showed  318  names,  two  of  which  were  not 
counted  because  two  of  the  ballots  were  folded  together,  and  there  were 
only  277  ballots.  Ballots  were  counted  as  they  stood  on  the  poll-list. 
Says  Black  and  Vance  took  the  returns  and  ballot-box  to  Black's  house. 
He  lived  in  Archer.  "  When  1  next  saw  them  after  they  left  the  voting 
place,  I  saw  them  at  Black's  house.  They  kept  the  returns  and  box 
there  from  about  11  o'clock  p.  m.  until  next  morping  about  3  or  4  o'clock, 
when  they  took  them  toGainesville,  the  county  seat  of  Alachua  County. 
I  went  with  them."  When  they  got  toGainesvillewitnesssayshesti  pped 
at  a  fire  in  Court  House  Square,  and  Black  took  the  box  off  in  the  di- 
rection of  Capt.  L.  G.  Dennis's  house  in  Gainesville.  After  this  witness 
heard  Dennis  at  his  own  house  tell  Black  to  take  the  box  away,  as  there 
had  been  one  box  thrown  out  by  being  at  his  house.  This  was  between 
nine  and  ten  o'clock  the  morning  after  the  election.  Black  got  to  Den- 
nis's just  at  daylight.  Witness  says  Dennis  was  a  noted  Republican 
politician  at  the  time,  and  was  a  candidate  for  the  State  legislature. 
Witness  says  the  key  to  ballot-box  was  a  common  key,  easily  dupliitated.^ 
Keyhole  not  sealed.  They  had  eight  keys  that  fitted  the  box.  Says  that 
Black  and  Dukes  went  of!"  from  the  polls  during  the  voting  and  he,  wit- 
ness, and  Vance  staid.  When  they  returned  witness  and  Vance  went 
out  for  dinner  together.     Witness  says  that  Dukes  could  neither  read 


VT8  DIGEST    OF    ELECTION  .CASES. 

aor  write;  that  be  voted  the  Democratic  ticket.     Witness,  Black,  aud 
Vance  voted  the  Republican  ticket. 

This  is  the  substance  of  this  witness's  statements.  (See  Record,  pp. 
82-88.) 

Samuel  T.  Fleming  testifies  that  he  stood  at  the  polls  at  Archer,  No. 
2,  and  took  down  the  names  of  all  persons  who  voted  as  they  voted  j 
says  he  was  there  all  day  except  about  20  minutes  when  voting  wassus- 
pended  for  dinner;  says  he  kept  a  list  of  all  who  voted  from  the  out- 
side of  the  room;  the  box  was  inside  the  room  near  window;  sent 
the  original  list  kept  by  him  to  secretary  of  state  of  Florida,  "  but  have 
a  correct  copy  of  it  with  exception  of  one  name";  and  here  witness  ex- 
hibited the  copy,  which  was  made  part  of  his  deposition,  without  objec- 
tion. This  list  contjiins  the  names  of  305  persons  who,  he  says,  voted ; 
says  he  went  there  to  take  down  the  names  of  all  persons  who  voted  at 
that  poll;  did  it  at  request  of  Democratic  executive  committee,  and  is 
positive  he  took  down  on  his  list  the  name  of  every  person  who  voted 
from  outside  room  that  day;  says  he  was  well  acquainted  with  the  vot- 
ing population  who  resided  about  the  poll,  and  with  the  exception  of  four 
or  five  knew  each  man  personally  who  voted  there  on  November  7,  1876; 
says  he  knows  that  500  votes  were  not  polled  at  that  poll  that<lay ;  says 
none  voted  from  inside  of  house  but  the  inspectors.  (See  Record,  pp. 
S9  to  93.) 

Wade  A.  Gieger  says  he  was  at  Archer  precinct.  No.  2,  on  the  day  of 
election;  there  before  polls  opened;  there  all  day  except  during  recess 
for  dinner,  and  once  after  that  about  20  minutes.  Saw  Fleming  stand- 
ing near  the  window  taking  down  the  names  of  the  persons  voting ;  was 
there  when  polls  closed.  Heard  the  announcement  for  governor  but  not 
the  other  candidates;  R.  H.  Black  announced  from  the  window,  in  aa 
ordinary  tone  of  voice,  that  Stearns  had  received  180  and  that  Drew  had 
received  136  votes  Witness  went  to  Black's  house  and  tried  to  get 
Black  to  take  the  box  back  to  the  house  where  the  voting  had  been  done 
and  have  it  guarded  with  box  No.  1;  he  feared  Black  would  tamper 
with  the  ballots.  Black  told  him  before  the  election  that  he  intended 
to  pack  the  box  if  he  had  a  chance;  Black  then  thought  witness  was  a 
Republican  as  he  (witness)  had  been  attending  Republican  meetings 
and  had  avoided  Democratic  meetings  and  he  was  understood  to  be  a 
Republican ;  was  well  acquainted  wit^  Blaek,  and  thinks  he  was  capa- 
ble of  tampering  with  a  ballot-box. 

George  Blick  testifies  that  he  went  to  Archer,  No.  2,  on  the  day  of 
election;  was  not  there  all  the  time.  "I  was  inspector  at  box  No.  1, 
which  was  in  same  bujlding  with  box  No.  2,  being  in  the  other  end  of 
the  building;  was  at  box  2  two  or  three  times  during  the  day,  perhaps 
oftener."  When  they  got  through  counting  Black  or  Vance  announced 
the  vote;  the  announcement  was  that  Stearns,  for  governor,  had  re- 
ceived 180  votes,  and  that  Drew  had  received  136  votes,  and  then  wit- 
ness went  into  the  room  where  poll  2  was,  and  asked  tlie  inspector  to 
let  him  see  the  tally-sheet;  they  then  told  witness  that  Stearns  had  re- 
ceived 180  votes  and  Drew  136  votes,  and  that  there  was  very  little  dif- 
ference between  their  vote  and  the  other  candidates.  Black  and  Vance 
took  box  off  to  Black's  house ;  witness  went  to  Black's  house  that  night 
and  asked  him  to  let  witness  put  box  No.  1  with  his  ballot  box  No.  2  in 
his  house,  and  let  witness  sit  there  with  him  and  guard  the  boxes  until 
morning,  when  they  would  carry  them  to  Gainesville.  "  lie  refused,  and 
said  he  could  take  care  of  his  box  if  I  (witness)  could  of  mine";  witnet;a 
then  left.  Witness  was  at  box  No.  1  when  announcement  was  made,  in 
sume  building  as  box  No.  2;  th«>re  «!*s  just  a  partition  between  and  two 


FINLEY    Vfc".    BISBEE.  79 

planks  were  off  of  that,  and  the  door  between  the  two  rooms  was  open. 
The  building:  was  about  3G  feet  long.     (See  Record,  pp.  98  to  100.) 

Irring  E.  Webster,  clerk  of  the  circuit  court  of  Alachua  County,  tes- 
tified that  the  ballot  box  of  Archer,  No.  2,  was  delivered  to  him  about 
noou  the  next  day  after  the  election  ;  the  key  was  delivered  early  in  the 
morning.     (Record,  pp.  103  to  109.) 

Samuel  C  Tucker  testified  that  he  was  sheriff  of  Alachua  County, 
and  resided  there  twenty  years;  spent  most  of  his  time  on  election  day 
at  Archer,  No.  2;  was  present  when  tally-sheet  was  being  made  and 
when  it  was  added  up;  was  near  enough  to  see  all  that  was  done;  did 
not  keep  a  regular  tally-sheet  of  his  own,  but  counted  over  the  tallies 
with  Vance  and  put  down  in  a  memorandum  of  his  own  the  total  foot- 
Ings-np  of  the  tallies.  While  doing  this  witness  would  ask  Vance  if 
each  result  put  down  by  him  on  this  memorandum  was  correct,  and  each 
time  Vance  would  say  yes,  they  agreed  with  his  (Vance's)  own  figures. 
Witness  said  he  did  not  have  the  original  memorandum,  but  had  a  true 
oopy  made  by  himself,  which  he  produced,  and  then  was  requested  to 
state  its  contents,  which  he  did,  as  follows: 

As  shown  by  this  memorandum  of  mine :  For  governor,  Drew  received  one  hundred 
»nd  thirty-six  (13G)  votes;  Steams,  for  governor,  received  one  hundred  and  eighty  (180) 
votes;  for  lieutenant-governor,  Hull  received  one  hundred  and  forty-one  (141)  votee; 
Mnntgoniery,  for  lieutenant-governor,  received  one  hundr.d  and  seventy-six  (176) 
votes;  Fioley,  for  Congress,  received  one  hundred  and  forty-one  (141)  votes;  Bisbee, 
for  Congresjs,  received  one  hundred  and  eighty  (180)  votes;  King,  for  State  senator, 
received  one  hundred  and  thirty-six  (11%)  votes;  Walls,  for  State  senator,  received  one 
hundred  and  eighty-one  (181)  votes;  for  assemblyman  to  State  assembly,  Sparkman, 
Democrat,  received  one  hundred  and  thirty-eight  (138)  votes;  l^ennis'.  Republican, 
received  one  hundred  and  eighty  (IHO)  votes;  Dndley,  Democrat,  received  one  hun- 
dred and  forty-one  (141)  votes;  Cessna,  Republican,  receive<l  one  hundred  and 
i*eventy-eight  (17>^)  votes;  for  Presidential  electors,  the  Democratic  electors  received 
each  of  them  one  hundred  and  forty-one  (141)  votes,  the  Republican  candidates  for 
Presidential  electors  each  received  one  hundred  and  seventy-eight  (178)  votes. 

Witness  says  that  after  footing  u})  the  tally  sheets  Black  announced 
the  result  through  the  window  to  the  crowd  outside.  The  announce- 
ment was  made  in  a  loud  tone  of  voice  avS  to  vote  for  Stearns  and  Drew, 
particularly  loud  as  to  Stearns;  he  announced  that  Stearns  had  received 
180  votes  and  Drew  136  rotes.  Witness  requested  him  to  make  an  an- 
nouncement as  to  the  other  candidates,  but  he  replied  that  it  was  not 
necessary  as  there  was  only  a  difference  of  three  or  four  votes.  After 
the  counting  was  over  the  hole  in  the  box  where  the  ballots  were  put 
in  was  sealed  up;  box  was  not  sealed  over  the  key  hole  or  anywhere 
else.  In  about  fifteen  minutes  after  the  canvass  was  over  witness  saw 
the  box  at  Black's  house;  it  was  not  then  sealed  anywhere  else  than 
on  top.  Witness  went  to  Black's  house  to  get  him  to  seal  the  box  more 
securely  and  over  the  key-hole,  and  also  between  the  body  and  the 
cover  or  lid  of  the  box,  a«  there  was  opening  enough  there  with  the  box 
locked  to  insert  ballots  through,  but  Black  refused  to  seal  it  any  more 
than  over  the  hole  in  the  top.  Black  was  the  inspector  who  was  to  take 
the  box  to  Gainesville,  the  county  seat,  to  make  the  returns.  (Record, 
pp.  109  to  112.) 

Floyd  Dukes  testified  that  he  was  one  of  the  inspectors  of  election  at 
Archer,  No.  2,  on  November  7,  1876;  he  strung  most  of  the  ballots  on 
a  string  when  they  were  counted.  Green  R.  Moore  strung  some  of 
them;  they  were  all  strung  by  witness  and  Moore.  After  they  were 
strung  they  were  counted  over  by  Black  and  put  back  in  the  ballot-box. 
R.  H.  Black,  one  of  the  inspectors,  read  off  names  from  the  ballots  as 
they  were  first  taken  out  of  box,  and  Vance,  the  clerk,  kept  the  tally 
sheets.     After  the  counting  was  all  over,  Black  or  Vance,  one,  an- 


?0  DIGEST    OF    ELECTION    CASES. 

uouuced  that  Steams  had  got  180  votes  and  Drew  136  votes;  there  wa» 
something  said  about  tlie  other  candidates  getting  about  the  same. as 
governor,  but  witness  does  not  recollect  just  what  it  was.  Black  told 
witness  that  he  had  to  sign  a  pa[)er,  and  he  wrote  witness's  name,  he 
supposes,  and  witness  touched  the  pen  to  make  his  cross  mark.  Wit 
ness  says  he  thought  that  the  paper  he  signed  at  the  time  did  show 
that  Stearns  had  received  180  votes,  and  that  Bisbee  had  received  about 
,  the  same,  for  Congress.  First  heard  from  Vance,  the  clerk,  that  vote 
for  Stearns  was  180,  and  130  for  Drew.     (See  Kecord,  pp.  112  to  114.) 

Jesse  I.  Griffin  testifies  that  he  was  at  Archer  precinct,  2!^^o.  2,  on  the 
election  day,  November  7, 1876.  Saw  Samuel  Flemming  there  that  day, 
at  the  polls,  ta,king  the  names  of  persons  as  they  voted.  He  com- 
menced as  soon  as  polls  weie  opened;  he  was  writing  names  on  blank 
sheet  paper  with  pencil.  He  left  and  went  to  dinner  between  12  and  I 
o'clock.  Distance  about  thirty  yards.  Witness  went  with  him.  He 
was  gone  about  twenty  minutes.  Witness  thinks  when  he  left  he  turned 
the  paper  and  pencil  over  to  Mr.  Edge.  When  Flemming  returned  ho 
took  the  paper  and  pencil  again.  Thiidis  they  took  recess  for  dinner ;  did 
not  have  any  announcement  to  that  eftect.  Mr.  Edge  did  not  take  down 
the  names  of  any  one  while  Flemming  was  at  dinner.  (See  Record,  pi). 
116  to  118.) 

Frank  Edge  testifies  that  he  was  at  Archer,  No.  2,  on  election  day,  in 
1876;  was  at  this  poll  the  greater  part  of  the  day.  Saw  Samuel  Flem- 
ming there.  He  was  keeping  a  list  of  those  who  voted.  He  left  the 
poll  about  one  o'clock  and  went  over  to  his  mother's  to  dinner.  Before 
he  started  he  handed  witness  a  piece  of  paper  and  pencil  and  told  him 
that  if  any  i)erson  voted  while  he  was  at  dinner  to  take  down  his  name; 
he  was  absent,  after  handing  witness  the  pa])er,  souie  fifteen  or  twenty 
minutes.  There  were  no  votes  cast  while  Flemming  was  gone.  Wit- 
ness heard  the  announcement  of  the  result  of  the  vote.  It  was  made  by 
Sam  Tucker  and  R.  H.  Black.  They  announced  that  Stearns  received 
180  and  Drew  136  votes.     (Record,  pp.  123  to  125.) 

The  foregoing  is  the  substance  of  the  oral  evidence  given  by  the  prin- 
cipal witnesses  tending  to  prove  that  the  vote  at  Arclier  precinct.  No. 
2,  was,  for  contestant,  141  votes  and  for  contestee  180  votes;  and 

The  following  is  the  substance  of  the  oral  evidence  given  by  the  prin- 
cipal witnesses  tending  to  rebut  the  foregoing  evidence  and  prove  that 
the  theory  that  contestant  got  141  votes  at  said  i)recinct  and  the  con- 
testee got  180  votes  is  not  correct. 

Thomas  H.  Vance  testified  that  he  was  clerk  of  the  election  at  box  No. 
2,  in  Archer,  at  election  on  November  7,  1876;  voted  there  the  straight 
Republican  ticket;  was  there  from  the  time  the  polls  were  ox^ened  until 
the  result  was  known,  except  about  ten  minutes  when  they  took  recess 
for  dinner.  Did  not  count  the  ballots,  but  kept  the  tally-sheet.  When 
the  polls  were  closed  the  ballots  were  counte-d.  Witness  counted  the 
names  on  his  poll  list;  counted  535  names;  counted  the  votes  cast  for 
e}u-,h  candidate.  Black  counted  the  ballots,  and  witness  asked  him  how 
many  ballots  he  found.  He  said  535,  which  he  had  carefully  counted 
over  twice.  Witness  says  that  at  the  close  of  the  count  an  announce- 
ment was  made  of  the  vote;  that  the  Republican  candidates  had  390 
votes  and  the  Democratic  candidates  had  136  votes.  This  announcement 
Wis  made  two  or  three  times  at  the  window.  There  w^as  a  cirtiticate  of 
the  result  made,  and  witness  says  he  signed  it.  Then  follows  this  ques- 
tion and  answer: 

Q.  Tell  nie,  if  yon  can,  what  vote  that  certificate  of  result  showed  for  each  candi- 
date?—A,  For  Pretideutial  electors,  Frederick  U.  Humpbried  received  three  hundred 


FINLEY   VS.    BISBEE  81 

and  nitiety-niue  votes;  Charles  Pearce  received  three  hundred  and  ninety-nine  votes; 
William  H.  Holden  received  three  hundred  and  ninety-nine  votes;  Thomas  \V.  Long 
received  three  hundred  and  ninety-nine;  Wilkinson  Call  received  one  hundred  and 
thirty-six  votes ;  R.B.Hilton  received  one  hundred  and  thirty-six  votes;  Kobert  Bul- 
lock received  one  hundred  and  thirty-six  votes;  and  J.  E.  Youge  received  one  hundred 
and  thirty-six  votx-s.  For  members  of  Congress,  second  Congressional  district,  Horatio 
Bisbee,  jr.,  received  three  hundred  and  ninety -eight  votes,  and  Jesse  J.  Fiulej*  received 
one  huudred  and  thirty-seven  votes.  P'or  governor,  Marcellus  L.  Stearns  received 
three  hundred  and  ninety-nine  votes;  George  F.  Drew  received  one  hundred  and 
thirty-six.  For  lieutenant-governor,  David  Montgomery  received  three  hundred  and 
ninety-seven  votes,  and  Noble  A.  Hull  received  one  hundred  and  thirty-eight.  For 
State  senator,  Josiah  T.  Walls  received  three  hundred  and  ninety-nine  votes,  and 
Thomas  F.  King  r«-ceived  oue  hundred  and  thirty-six.  For  members  of  the  assembly, 
L.  G.  Dennis  recei%'ed  three  hundred  and  ninety-eight;  W.  K.  Cessna  received  three 
hundred  and  ninety-seven  ;  P.  B.  Dudley  received  one  hundred  and  thirty-eight;  and 
J.  M.  Sparkman  received  one  hundred  and  thirty-seven. 

Says  the  inspectors,  R.  H.  Black  and  Green  E.  Moore,  signed  their 
names  to  the  first  return.  Black  signed  Floyd  Dukes's  name  for  him, 
and  Dukes  made  his  mark,  for  he  could  not  write.  The  second  return  R. 
H.  Black  signed  first^nd  asked  Green  R.  Moore  to  sign  his,  and  Moore 
said,  "Black,  sign  it  for  me,  for,  damn  it,  my  finger  is  sore."  Black 
said  to  Floyd  Dukes,  "  Daddy,  I'll  sign  this  for  you — jou  can't  write,** 
which  he  did,  and  Dukes  made  his  mark.  Witness  says  that  he  has 
seen  the  list  kept  bv  Flemming  at  the  poll  on  election  day  at  Archer, 
No.  2,  and  had  examined  it.  Said  he  saw  persons  vote  at  that  poll  on 
election  day  whose  names  are  not  on  the  list,  and  names  Frank  Dansy, 
Arch.  Brown,  Jerry  Allen,  Jesse  Brown,  and  one  other  by  name  of 
Cooper.  On  cross-examination  by  contestee,  this  witness  says  he  is 
positively  certain  that  the  number  of  votes  stated  by  him  in  his  exami- 
iiation-iu  chief  is  correct;  then  these  questions  and  answers  follow: 

Q.  Are  you  positively  sure  that  you  counted  five  hundred  and  thirty-five  names  on 
the  poll-list,  as  you  have  testified  in  your  examination-in-chief  f — A,  I  am  ;  I  counted 
it  twice  to  be  certain. 

Q.  Are  you  positively  certain  that  the  nnmber  of  votes,  as  stat«d  by  you  iu  yonr 
»)xami nation-in-chief  as  having  been  given  to  eacU  candidate  and  as  the  result  of  said 
election  at  box  No.  2,  Archer,  was  the  true  result  of  said  election  at  that  place,  and 
that  the  number  of  votes  so  stated  by  you  were  certified  by  the  inspectors  of  the  elec- 
tion at  said  box,  and  by  yourself  as  clerk,  as  yon  have  stated  in  yonr  examination-in- 
chief  f — A.  No  ;  I  can't  say  that,  for  there  was  a  mistake  in  making  up  the  returns  in 
the  vote  for  member  of  Congress  and  for  State  senator ;  all  the  rest,  to  the  best  of  my 
knowledge  and  belief,  are  correct. 

Q.  Were  the  number  of  votes  stated  by  you  in  your  examination-in-chief  to  have 
been  given  to  the  difierent  candidates,  the  nnmber  set  out  iu  the  certificate  of  elec- 
tion, given  by  the  inspectors  with  yourself  as  clerk  ? — A.  There  was  a  mistake  as  to 
member  of  Congress  and  State  senator. 

Witness  then  says  that  but  one  announcement  was  made  at  the  poll, 
and  that  Black  made,  and  which  he  has  already  stated ;  says  he  does 
not  know  whether  Frank  Dansey's  name  was  on  the  poll-list  or  not,  for 
he  don't  know  whether  the  poll-list  is  in  existence  or  not ;  says  Black  took 
charge  of  the  box  and  Moore  of  the  key;  says  he  accompanied  Black 
while  in  charge  of  the  box  ;  went  with  him  to  his  house,  and  from  there 
to  Gainesville;  went  by  a  special  train.  The  regular  train  was  due  at 
Archer  at  Ui  o'clock  a.  m.,  and  the  special  train  went  up  to  Gainsville 
about  2i  or  3  o'clock  a.  m.  Was  with  Black  all  the  time.  Says  they 
(witness,  Black,  and  Moore)  arrived  at  Gainesville  about  4^  o'clock,  or  a 
little  after,  and  went  to  the  court  house.  Found  clerk's  office  locked. 
Then  they  went  from  there  to  Vance's  house  in  Gainesville,  and  staid 
there  with  ballot-box  until  clerk's  office  opened.  After  oflBce  opened, 
witness  went  with  Black,  and  he  delivered  it  to  the  clerk  of  the  c<mrt; 
and  witness  is  not  certain  whether  he  or  Black  handed  him  theretnrns* 
Clerk  said  Moore  had  not  delivered  to  him  the  key.  Says  he  wa&  not 
H.  Mis.  58 6 


82  DIGEST  OP  ELECTION  CASES. 

with  Black  all  the  time ;  left  bim  in  witness's  house  twice  to  go  ta  see  if 
clerk's  office  was  open.  Thinks  Black  left  him  at  Black's  house  when 
Black  went  to  get  some  whisky.  Mr.  Harvard  and  J.  R.  Miller  wanted 
Black  to  take  the  box  and  leave  it  with  box  No.  1  till  next  morning, 
until  the  train  came  along.  Black  refused  to  do  so.  Says  the  box  nor 
the  returns  were  tampered  with  while  witness  and  any  of  the  in- 
spectors were  together,  from  the  time  the  polls  closed  until  delivered  to 
the  clerk  of  the  court.  Witness  says  there  was  a  mistake  in  the  returns 
of  the  vote  for  Congressmen.  Horatio  Bisbee,  jr.,  received  398  votes, 
and  on  the  returns  it  is  399;  Jesse  J.  i^'inley  received  137  votes,  and  on 
the  returns  it  is  14L  votes ;  which,  he  saj's,  makes  a  difference  of  4  votes 
in  favor  of  Finley  which  ought  not  to  be  there.  Says  he  had  left  the 
room  where  the  ballot-box  was,  about  ten  minutes  before  the  train  came, 
to  go  in  to  an  adjoining  room  to  go  to  bed,  and  was  in  the  act  of  going 
to  bed  when  he  heard  the  train  coming.  Witness  and  Black  took  ballot- 
box  to  the  clerk's  office  and  delivered  it  to  the  clerk.  Box  was  placed 
under  witness's  bed  while  at  his  house.  He  says  that  the  parties  who 
wanted  Black  to  take  the  box  where  box  No.  1  was  and  stay  there  with 
it,  also  wanted  Black  to  let  Mr.  Blitch  bring  box  No.  2  up  to  Black's 
Louse  and  leave  it  with  Black,  and  have  Blitch,  who  was  inspector  of 
box  No.  1,  stay  with  him.  Black  said  he  had  nothing  to  do  with  box 
No.  1 ;  the  inspectors  of  box  No.  1  uuist  take  care  of  their  own  box,  and 
he  would  be  certain  to  take  care  of  box  No.  2.     (Record,  328  to  334.) 

E.  H.  Black  testifies  that  he  was  one  of  the  inspectors  of  the  elec- 
tion at  Archer,  No.  2,  on  November  7,  18<8;  was  present  all  day  at  the 
polls  excepting  the  time  he  went  to  dinner,  which  was  about  ten  min- 
utes; was  also  absent  at  box  No.  1,  in  another  part  of  the  building, 
about  ten  minutes,  in  company  with  Mr.  Vance,  the  clerk,  leaving  Mr. 
Dukes  and  Moore  at  box  No.  2.  Dukes  was  a  Democrat,  Mr.  Moore  a 
Republican.  Moore  enjoyed  the  confidence  of  the  Republican  leaders  of 
the  county.  The  vote  at  Archer  ]>reciuct  had  always  been  largely 
Republican.  The  Republican  vote  in  1872  was  over  200  and  the  Demo- 
cratic vote  was  40.  The  Democratic  vote  in  1874  was  not  over  30. 
Republican  vote  was  nearly  300.  The  Republican  vote  has  gradually 
increased  since  witness  lived  in  Archer.  A  large  body  of  government 
land  in  that  section  has  been  homesteaded  by  colored  people.  Repub- 
lican managers  of  the  county  anticipated  a  large  increase,  hence  they 
established  two  boxes  where  there  had  been  but  one  at  Archer.  Their 
anticipation  in  that  respect  was  realized.  Republicans  were  well  organ- 
ized. There  were  in  the  different  settlements  near  Archer  five  Hayes 
and  Wheeler  clubs.  The  roll  of  these  clubs  in  the  aggregate  numbered 
about  7U0,  all  of  whom  intended  to  vote  the  Republican  ticket.  At  the 
election,  witness  says  at  box  x<o.  2,  on  November  7,  1876,  399  Repub- 
lican to  1-C  Democratic  votes  were  polled.  Total  vote  535.  Was  sur- 
prised to  find  the  number  of  Democratic  votes  in  the  box,  as  he  had 
observed  the  vote  through  the  day.  Could  not  recollect  over  ten  Dem- 
ocrats who  had  voted  through  the  day  at  box  2,  and  there  were  not 
more  than  20  Democrats  living  in  the  neighborhood,  and  most  of  them 
had  voted  at  box  1.  He  says  he  noticed  no  irregularity,  illegality,  or 
fraud ;  saw  the  ballots  taken  from  the  box  and  assisted  in  the  count, 
and  announced  the  result  as  stated  above.  The  return  was  made  in 
accordance  with  the  vote  found  in  the  ballot-box.  It  was  signed  by  all 
the  inspectors  and  the  clerk ;  no  objection  made.  Moore  and  Dukes  did 
not  (tount  the  vote.  They  did  not  count  the  names  on  the  clerk's  list, 
nor  number  checked  on  poll-list.  There  was  a  Democrat  present  by 
the  name  of  Flemming,  who  pretended  to  keep  a  list  of  the  names  of  those 


FINLEY   VS.    BISBEE.  83 

who  voted.  He,  Flemming,  was  not  present  at  poll  during  entire  day ; 
was  absent  twice  to. witness's  knowledge.  Witness  never  said  at  any 
time  that  the  vote  was  different  from  that  announced  at  the  polls.  Says 
Democrats  attempted  to  obtain  possession  of  the  ballot-box  from  him 
after  the  election  was  over.  The^'  demanded  it  from  him  in  his  house. 
The  party  who  demanded  it  consisted  of  about  nine  or  ten  persons.  The 
box  was  in  his  keeping ;  delivered  it  the  following  day  and  got  a  receipt 
for  it.    Moore  had  the  key. 

After  the  return  was  rendered,  and  before  the  county  canvass  took  place,  I  was  ap- 
proached by  Dr.  E.  D.  Carew,  a  promiueut  Democrat  in  the  precinct  of  Archer,  who 
asked  me  if  1  didn't  want  to  sell  a  piece  of  laud  that  I  owned  at  Archer.  I  told  him  I 
did.  He  asked  what  it  was  worth.  I  told  him  §300.  He  said  he  knew  of  a  gentleman 
that  wanted  to  buy  it.  He  took  his  pencil  from  hie  pocket  and  wrote  some  figures  on 
a  newspaper,  which  I  found  to  be  an  otter  of  §600  for  my  place,  on  condition  that  I 
would  join  Moore  in  his  statement  that  the  vote  cast  was  at  Archer,  box  No.  2,  as  fol- 
lows: 180  Republican  and  136  Democratic.  Moore  had  made  such  a  statement  in  the 
form  of  an  affidavit.     (Record,  307  to  308.) 

Irving  E.  Webster,  whose  evidence  has  heretofore  been  noticed,  testi- 
fies that  the  box  of  Archer,  ZSTo.  2,  was  brought  to  him  by  Black  on  the 
8th  November,  1876.  The  returns  were  in  an  envelope  and  sealed  up; 
box  had  a  piece  of  paper  over  the  hole  in  the  cover,  and  sealed  around 
the  edges  with  sealing-wax ;  was  also  a  similar  piece  of  paper  over  the 
key-hole ;  don't  remember  whether  the  poll-list  was  in  the  box  or  not, 
but  it  was  returned  to  witness ;  the  registration-list  was  in  the  box ;  poll- 
list  may  have  been  sealed  up  with  the  returns;  says  the  poll-list  was 
extracted  from  his  office  between  the  time  of  the  county  canvass  and  the 
session  of  the  House  committee  (meaning  the  committee  of  this  House 
who  visited  Florida  during  the  last  session  of  the  Forty-fourth  Congress). 
Kept  the  poll-list  in  his  safe;  it  was  an  iron  safe,  and  he  kept  it  locked. 
Did  not  miss  the  poll-list  until  called  for  by  the  House  commfttee.  (See 
Eecord,  3U  to  347.) 

Frank  Danzy  testifies  that  he  was  at  Archer  precinct,  No.  2,  November 
7, 1876,  and  was  the  first  man  who  voted  at  that  poll  on  that  day.  (Eec- 
ord, 230-232.)  Three  hundred  and  eight  colored  persons  testify  that 
they  voted  at  this  poll,  and  that  they  voted  the  Eepublicau  ticket,  in- 
cluding Bisbee.     (Eecord,  130-340.) 

As  this  committee  has  already  said,  the  foregoing  contains  the  sup- 
stance  of  the  oral  evidence  of  the  principal  witnesses  in  regard  to  the 
vote  of  Archer  precinct.  No.  2.  We  do  not  desire,  however,  to  be  under- 
stood as  saying  that  there  are  no  other  witnesses  whose  testimony  is 
important;  but,  upon  the  contrary,  there  are  many  more  witnesses  whose 
statements  tend  to  throw  light  upon  the  questions  involved.  In  order 
to  understand  the  case,  the  whole  of  the  evidence  in  the  record  in  regard 
to  this  poll  must  be  read  carefully  and  studied.  The  committee  will  now 
call  attention  to  some  of  the  importand  questions. 

1st.  We  will  consider  the  question  of  fraud  on  the  part  of  some  of  the 
election  officers  of  this  precinct.  It  will  be  remembered  that  E.  H.  Black, 
Green  E.  Moore,  and  Floyd  Dukes  were  the  inspectors,  and  Thomas  H. 
Vance  was  the  clerk,  at  said  poll.  That  there  was  fraud  committed  by 
way  of  forging  the  returns  by  the  officers  of  this  precinct  there  cannot 
be  any  question,  and  is  admitted  bj'  the  coutestee.  But  it  is  necessary 
to  briefly  review  the  evidence  in  order  to  come  to  a  correct  conclusion 
in  regard  to  how  the  vote  of  the  precinct  shall  be  treated. 

The  evidence  proves  that  the  election  at  this  precinct  was  peaceable 
and  orderly  so  far  as  the  voters  were  concerned,  as  much  so  as  usual  at 
such  places.  After  the  polls  were  closed  the  votes  were  counted,  and 
the  result  was  determined  by  the  election  officers.    The  ballots  were  put 


84  DIGEST    OF    ELECTION   CASES. 

in  tlie  box,  aiul  it  was  locked,  and  the  key  ^iven  to  Moore  and  Black, 
and  Vance  took  the  returns  or  whatever  i)apers,  if  any,  were  signed  by 
the  inspectors  and  clerk,  and  the  poll-list  and  tally-sheets,  and  took 
them  to  Black's  house  in  the  village  of  Archer,  but  a  short  distance 
from  the  place  where  the  election  was  held.  It  must  be  borne^in  mind 
that  it  is  proven  that  Black,  Vance,  and  Moore  were  all  Eepnblicans. 
Soon  after  it  was  known  that  Black  and  Vance  had  taken  the  ballot-box 
to  Black's  house  the  Democrats  became  alarmed  for  its  safety,  and  they 
went,  as  the  evidence  shows,  and  made  a  request  of  Black  at  his  house 
that  he  take  the  ballot-box  down  where  box  No.  1  was  being  kept  by  Mr. 
Blitch,  who  w  as  inspector  of  the  election  at  that  box,  and  whose  custody 
it  was  then  in.  But  he,  Black,  scornfully  refused  to  do  so.  They  then 
requested  him  to  allow  Mr.  Blitch  to  take  box  No.  1  up  to  his  house  and 
place  it  with  box  No.  2,  and  he  and  Blitch  to  remain  there  together  in 
charge  of  the  two  boxes  until  the  next  morning,  and  then  take  the  train 
and  take  them  to  Gainesville,  the  county  seat,  and  make  the  returns  to 
the  clerk.  This  proposition  Black  also  refused  in  the  same  manner  as  the 
first.  Both  these  propositions  were  perfectly  fair,  and  in  no  way  calcu- 
lated, if  an  h  tnest  man,  to  make  him  feel  that  his  motives  were  impugned 
in  a  matter  of  so  much  public  importance — one  upon  which  the  election 
of  a  President  of  a  great  nation  might  depend.  And  if  he  had  been  dis- 
posed to  have  acted  honestly  and  fairly  in  his  official  duty  he  would 
have  consented  to  snch  a  fair  and  reasonable  request.  But  dishonestly 
intending  to  carry  out  his  fraudulent  and  corrupt  purpose  of  forging  the 
returns  of  Archer  precinct.  No.  2,  he  and  his  equally  corrupt  and  ever- 
faithful  friend  and  coconspirator  in  the  execution  of  this  crime  against 
the  purity  of  the  ballot-box  remained  alone  at  Black's  house  in  the  sole 
custody  of-  this  box  until  about  3^  o'clock  next  morning;  when,  at  this 
very  unusual  hour,  they  took  an  extra  train,  which  happened  by  accident 
10  come  along  at  that  time,  and  went  to  Gainesville  to  make  the  return 
instead  of  waiting  until  9J  o'clock  in  the  morning  and  then  take  the 
regular  passenger-train,  which  would  have  carried  them  to  Gainesville  in 
ample  time  to  make  the  return  and  before,  in  fact,  they  did  make  it;  for 
the  evidence  of  the  clerk  shows  it  was  not  made  until  12  o'clock  that  day, 
and  after  box  No.  1  had  been  returned  by  Blitch,  who  left  Archer  on  the 
9^  train.  When  they  got  to  Gainesville  they  pretend  to  say  they  went 
to  the  clerk's  office  to  make  the  return,  it  being  but  half  after  four  o'clock 
la  the  morning,  a  very  unusual  hour  indeed  for  men  to  undertake  to 
transact  official  business  with  a  public  officer;  but  not  finding  the  clerk 
in,  they  went  to  Vance's  house,  where  he,  Vance,  resided  in  Gainesville. 
This  is  Vance's  statement.  And  there  Black  put  the  ballot-box  under 
the  bed,  and  laid  himself  across  the  bed,  and  perhaps  went  to  sleep  in 
order  to  its  more  perfect  security,  as  he  claims  to  have  been  very  watch- 
ful of  it. 

But  Green  R.  Moore,  a  Republican  in  good  standing,  who  accompanied 
Black  and  Vance  on  their  mission  of  fraud  to  Gainesville  on  their  extra 
night  train  with  the  box  key  in  his  pocket,  betrays  these  confederates. 
He  swears  that  Black  left  him  near  the  court-house  in  Gainesville,  and 
•went  with  the  ballot-box  in  the  direction  of  the  residence  of  L.  G.  Dennis, 
who  lived  in  Gainesville,  and  who  was  a  leading  Republican  and  a  candi- 
date for  the  legislature,  and  who  waj  very  officious  in  regard  to  the  elec- 
tion at  this  poll,  as  the  evidence  shows.  He  was  the  leading  member  of 
the  board  of  commissioners  of  Alachua  County,  which,  under  the  laws 
of  the  State  of  Florida,  had  the  power  to  appoint  and  did  appoint  the 
said  Black  and  Green  R.  Moore  inspectors  at  said  poll,  both  being  Re- 
publicans, and  the  third  inspector  was  Floyd  Dukes,  who  was  a  Demo- 


FINLEY   VS.    BISBEE.  85 

crat.  But  the  evidence  sbows  tbat  he  wa^s  an  old  colored  man  that  could 
neither  read  nor  write,  thus  securing  the  election  of  a  Kepublican  for 
clerk  at  said  poll.  And  when  the  election  board  met  and  was  about  to 
select  a  clerk,  it  was  found  that  this  faithful  Vance  was  present.  He 
had,  by  accident,  gone  all  the  way  from  Gainesville,  where  we  have 
already  stated  he  lived,  and  Black  and  Moore  at  once  selected  him  as 
clerk.  No,  this  was  not  accidental,  but  a  part  of  the  fraudulent  pro- 
gramme which  had  been  marked  out  by  L.  G.  Dennis,  Black,  Vance,  and 
others,  to  tamper  with  the  ballot-box  at  Archer  No.  2,  in  the  interest  of 
their  political  friends.  And  this  they  accomplished  to  the  extent  of 
somewhere  between  two  and  three  hundred  votes,  by  causing  their  false 
and  forged  returns  to  be  canvassed  and  counted  for  their  political  friends. 
That  Black  and  Vance  went  to  Dennis's  house,  or  saw  him  the  morning 
they  got  to  Gainesville  with  the  ballot-box  and  advised  with  him,  your 
committee  have  but  little  doubt,  and  that  his  direction  was  followed  in 
the  completion  of  the  perjury  and  forgery.  However  this  may  be,  the 
double  crime  was  committed.  The  Kepublican  county  clerk,  with  whom 
the  box  and  returns  were  placed  under  the  law,  swears  that  all  the  time 
the  county  board  of  canvassers  were  canvassing  the  returns  from  this 
precinct,  it  appeared  to  him  from  the  face  of  the  returns  that  fraud  had 
been  committed  in  favor  of  the  Republican  candidates.  Yet  the  county 
canvassers,  with  the  fact  of  forgery  being  patent  upon  the  face  of  the 
returns  from  this  precinct,  counted  the  votes  thus  returned  through  this 
perjury  and  forgery. 

Another  fact  not  to  be  overlooked  is  that  the  Congressional  commit- 
tee, Avhich  was  sent  to  Florida  just  before  the  so-called  electoral  count, 
searched  for  these  returns  of  this  precinct,  but  they  could  not  be  found. 
The  clerk  of  the  circuit  court,  in  whose  custody  they  were  placed,  swears 
that  this  was  the  first  knowledge  he  had  that  they  were  missing.  He 
says,  however,  that  he  kept  them  in  an  iron  safe,  and  carried  the  key, 
and  still  he  pretends  to  say  that  he  does  not  know  what  became  of  them. 
At  all  events  they  are  not  to  be  found;  and  in  the  opinion  of  your  com- 
mittee they  were  destroyed  by  some  of  the  conspirators  to  cover  up  their 
crime.  The  poll-list,  tally-sheet,  and  the  return  belonging  to  said  poll 
are  gone. 

Your  committee  is  clearly  of  the  opinion  from  the  evidence  that  the 
election  at  this  poll  is  tainted  with  frauds,  the  returns  false  and  forged, 
whereby  they  showed  that  contested  got  some  two  or  three  hundred 
more  votes  than  were  actually  cast  for  hiin,  which  were  canvassed  and 
counted  for  him  by  the  returning-boards. 

Your  committee  is  therefore  compelled  to  go  behind  these  fraudulent 
returns  and  examine  the  evidence  in  the  case,  and  ascertain  the  true 
vote,  if  it  can  be  done,  from  the  evidence. 

When  the  polls  were  closed  and  the  votes  counted,  several  witnesses 
testify  that  Black  publicly  announced  from  the  window  through  which 
the  ballots  were  received  that  Stearns,  the  Republican  candidate  for  gov- 
ernor, had  received  180  votes,  and  Drew,  the  Democratic  candidate,  had 
received  136  votes,  and  that  the  other  candidates.  Republican  and  Demo- 
cratic, did  not  differ  from  their  respective  candidates  for  governor  more 
than  three  or  four  votes.  This  is  one  of  the  theories  presented  by  con- 
testant; and  it  is  argued  with  muce  force,  and  we' must  concede  that 
if  the  vote  of  this  precinct  is  to  be  counted  at  all,  the  conclusion  that  the 
contestee  received  180  votes  and  the  contestant  received  141  is  the  most 
reasonable  one  which  can  be  drawn  from  the  evidence. 

Green  R.  Moore,  one  of  the  inspectors,  swears  that  there  were,  according 
to  the  tally-sheets  and  the  poll-list,  318  votes  cast  at  this  poll,  and  that 


86  DIGEST   OF   ELECTION   CASES. 

two  of  those  beiug-  folded  together  were  destroyed,  leaving  but  316;  and 
he  is  supported  substantially  by  Floyd  Dnkes,  Gergeu  Blitch,  Tucker, 
and  Edge;  they  say  that  Black  publicly  announced  the  votes  as  stated 
by  Moore. 

Blitch  testifies  that  the  announcement  made  by  Black  of  the  result 
agreed  with  the  tally-sheets  kept  by  Vance,  the  clerk. 

Tucker,  who  was  sheriff  of  the  county  at  the  time,  swears  that  he 
counted  over  the  tallies  with  Vance,  and  put  down  the  total  footings  of 
the  vote  for  each  candidate  in  a  private  memorandum  of  his  own,  and 
as  he  did  so,  would  ask  Vance  if  each  was  correct,  and  Vance  answered 
it  was.  And  Tucker  makes  a  copy  of  this  memorandum  a  part  of  his 
evidence,  which  shows  that  contestee  received  180  votes  and  contestant 
received  141. 

Flemming  swears  that  he  stood  at  this  poll  with  pencil  and  paper  all 
day,  except  about  twenty  minutes  when  he  was  at  dinner,  and  took 
down  the  names  of  every  person  who  voted  from  the  outside  the  room 
occupied  by  the  election  board.  He  says  tliat  no  voting  was  done  while 
he  was  absent,  and  he  is  corroborated  in  this  statement  by  Edge,  with 
whom  he  left  the  pencil  and  paper  while  he  went  to  dinner,  with  instruc- 
tions to  take  down  the  names  of  all  who  voted  during  his  absence. 
Edge  says  no  one  voted  during  Flemming's  absence.  Flemming  also 
swears  that  he  was  acting  under  the  direction  of  the  Democratic  exec- 
utive committee  in  taking  down  the  names;  that  he  was  requested  to 
attend  the  poll  and  do  so.  And  he  says  that  there  were  but  305  votes 
l^olled  from  the  outside  of  the  room  in  which  the  election  was  held.  If 
to  this  is  added  the  four  votes  which  it  is  reasonable  to  suppose  were  cast 
by  the  officers  of  election  in  the  room,  we  have  309  as  the  total  number 
according  to  his  evidence.  He  also  makes  a  copy  of  the  list  of  names 
so  kept  by  him  a  part  of  his  evidence. 

This  evidence,  together  with  the  other  evidence  in  the  record  which 
supports  it,  if  standing  alone,  would  stronglj'^  tend  to  sustain  the  theory 
that  there  were  about  318  votes  cast,  or  that  contestee  received  180  and 
contestant  received  141  votes.  The  vote,  even  under  this  theory,  cannot 
be  exactly  ascertained,  if  there  was  no  other  evidence  in  the  record  in 
regard  to  the  number. 

But  Vance,  the  clerk,  swears  that  he  kept  the  tally-sheet,  and  that 
there  were  535  names  on  the  poll-list,  which  he  carefully  counted  twice, 
and  that  an  announcement  was  publicly  made  that  the  Republican  can- 
didate received  399  votes,  and  the  Democratic  candidate  had  received 
136  votes.  He  says  this  announcement  was  made  two  or  three  times  at 
the  window.  Then  a  certificate  was  made  of  the  vote  and  signed  by  the 
insi)ectors,  and  by  himself  as  clerk,  and  that  this  certificate  showed  that 
contestee  received  398  votes,  and  contestant  136  votes,  and  then  testifies 
as  to  the  manner  in  which  the  duplicate  certificates  were  signed  (see  his 
ev.).  He  afterwards  qualifies  this  statement  by  saying  that  there  was  a 
mistake  in  the  certificate  as  to  the  vote  for  Congress  and  State  senator, 
and  that  all  the  rest  were  correct.  Then  he  says  that  but  one  announce- 
ment was  made  at  the  polls,  and  that  was  made  by  Black,  contradicting 
his  first  statement  upon  this  point.  Again,  he  says  the  returns  for  Con- 
gress showed  that  Bisbee  received  399  votes  and  Finley  141,  but  that 
this  was  a  mistake;  that  their  true  vote  was  399  and  137,  respectively, 
which  he  says  makes  a  difference  of  4  votes  between  the  true  vote  and 
the  vote  as  shown  by  the  returns. 

Black  swears  that  he  was  one  of  the  inspectors  of  this  election;  that 
the  Republican  vote  was  399  and  the  Democratic  vote  was  136;  total 


FINLEY   VS.    BISBEE.  87 

vote,  535;  and  that  lie  announced  that  as  the  vote,  and  that  the  return 
was  made  in  accordance  with  the  vote  found  in  the  ballot-box. 

Frank  Danzy  swears  that  he  was  the  first  man  who  voted  at  that  poll ; 
that  he  voted  at  the  window  from  the  outside.  It  will  be  observed  that 
Danzy's  name  is  not  on  Flemraing's  list.  Danzy  is  corroborated  by  other 
witnesses  on  this  point,  which  tends  to  weaken  the  force  of  Flemming's 
list. 

Three  hundred  and  eight  colored  witnesses  swear  that  they  voted  the 
Kex)ublican  ticket  at  that  poll.  Their  evidence  shows  that  but  very  few 
of  them  could  either  read  or  write,  most  of  them  making  their  cross  to 
their  depositions.  They  had,  of  course,  to  rely  upon  others  for  informa- 
tion as  to  the  kind  of  tickets  they  voted.  They  may  have  been  deceived, 
many  of  them,  or  they  may  have  been  induced,  some  of  them,  to  make 
the  statements  under  oath  which  they  did;  it  is  not  for  your  committee 
to  say;  but  it  is  enough  to  say  that  their  evidence  greatly  tends  to  in- 
crease the  doubt  as  to  what  is  the  true  vote  of  this  precinct.  It  cannot 
be  true  that  there  were  535  votes  polled  at  this  precinct  or  box,  and  the 
statements  of  these  last-named  witnesses  are  in  harmony  with  no  other 
theory  of  the  case.  The  evidence  shows  that  there  was  but  one  box  or 
place  of  voting  at  Archer  until  1876;  that  box  Ko.  2  was  established 
for  the  election  of  that  year  for  the  first  time.  It  further  shows  that  the 
eutire  vote  in  1874  at  that  precinct  was  only  318,  just  two  votes  more 
than  Moore  says  was  counted  by  the  inspectors  at  box  No.  2  in  1876; 
and  if  you  add  the  votes  cast  at  box  No.  1  in  1876,  about  which  there  is 
no  controversy,  to  the  vote  at  box  No.  2,  as  stated  by  Moore,  you  have  a 
total  vote  of  468  at  this  precinct  in  1876,  an  increase  of  just  150  votes — 
quite  a  large  increase  for  two  years.  But  if  you  take  the  statements  of 
Black  and  Vance  as  to  what  the  vote  was  at  box  No.  2  and  add  that  to  the 
vote  of  box  No.  1,  yon  have  a  total  vote  of  690  in  1876 — a  net  increase  over 
the  vote  at  that  precinct  in  1874  of  372  votes,  more  than  two  to  one;  a  very 
extraordinary  increase  in  so  short  a  time  for  a  country  precinct.  And 
this  increase  is  not  satisfactorily  accounted  for  by  the  evidence.  Black 
undertakes  to  explain  it  by  saying  that  there  was  a  large  body  of  gov- 
ernment land  in  the  neigborhood  which  was  homesteaded  by  colored 
people  since  1874.  That  is  a  good  way  to  account  for  the  increase;  but 
he  is  contradicted  in  this  statement  by  Danzy  and  several  other  wit- 
nesses, who  swear  that  there  had  not  be^n  but  very  little  increase  in  the 
population  since  1873.  This  theory  of  the  case  and  the  evidence  of  Black 
fall  to  the  ground  when  measured  by  the  evidence.  The  theory  of  con- 
testee,  that  the  Democratic  vote  at  this  precinct  was  greatly  in  excess  of 
what  rt  should  have  been,  and  must,  therefore,  have  been  fraudulent,  is 
not  well  founded,  as  will  be  seen  when  the  evidence  is  carefully  ex- 
amined. Indeed  it  does  not  take  a  very  careful  examination ;  for  if 
fraud  was  committed  at  this  precinct,  and  there  is  no  doubt  on  that 
point,  it  was  committed  by  coutestee's  political  friends,  and  no  one 
would  hardly  believe  that  they  would  have  cotnmitted  it  in  favor  of  his 
political  opponent.  His  political  friends  had  full  and  complete  control 
of  the  election  at  this  poll. 

Black  swears  that  he  was  greatly  surprised  at  the  large  number  of 
Democratic  votes  at  this  precinct.  He  says  that  the  Republican  vote 
in  1872  was  over  200,  and  at  the  same  election  the  Democratic  vote  was 
40.  The  contestee,  in  his  printed  argument,  page  "25,  corrects  this  error 
in  Black's  evidence,  and  fixes  the  llepublican  vote  at  100  and  the  Demo- 
cratic vote  at  40.  Black  says  that  in  1874  the  Democratic  vote  was  not 
over  30,  the  Republican  nearlj'  30i>.  In  this  he  is  nearly  correct.  He  says 
that  the  increase  in  the  republican  vote  was  auticijjated,  and  for  that 


88  DIGEST    OF   ELECTION    CASES. 

reason  box  No.  2  was  established,  not  anticipating  an  increase  in  Demo- 
cratic votes.  And  the  contestee  adopts  the  false  theory  that  manj'  per- 
sons have  advocated  recen*^ly  that  it  is  hardly  possible  for  a  colored 
voter  to  vote  the  Democratic  ticket.  But  this  theory  is  greatly  at  fanlt 
so  far  as  this  precinct  is  concerned,  for  it  appears  from  the  evidence  that 
at  box  1,  in  1876,  the  Democratic  vote  was  98,  and  the  political  friends 
of  the  contestee  having  complete  control  of  box  No.  2,  as  we  have  already 
said,  returned  for  contestant,  a  Democrat,  141  votes,  making  a  total 
Democi^atic  vote  of  239  at  that  place  as  against  25  two  years  before.  It 
is  therefore  argned  by  the  contestee  that  the  Democratic  vote  at  box  2 
was  greatly  increased  hy  fraud. 

It  is  hardly  to  be  supposed  that  the  political  friends  of  the  contestee 
would  commit  a  fraud  which  would  increase  the  vote  of  his  political  oppo- 
nents. The  legal  presumption  is  the  other  way,  and  as  there  is  no  evi- 
dence to  support  this  argument  it  must  fall.  There  is  another  fact  in 
connection  with  this  poll  to  which  we  wish  to  call  attention.  Moore  says 
that  Black  counted  277  tickets  in  all  that  were  put  in  the  box,  and  Web- 
ster, the  clerk  of  the  court,  swears  that  when  the  box  was  opened  by 
the  county  board  of  canvassers,  that  277  was  the  exact  number  of  ballots 
found  in  the  box.  This  is  another  prominent  feature  in  the  evidence 
tending  to  produce  uncertainty  as  to  the  true  vote,  and  shows,  if  true, 
that  the  ballots  were  tampered  with  before  they  were  counted. 

But  there  is  still  another  view  of  this  question  assumed  by  the  contes- 
tee; he  insists  that  he  has  proven  by  308  persons  that  they  voted  for  him 
at  Archer  No.  2.  He  claims  that  he  has  proven  this  by  the  mouths  of 
the  voters,  outside  of  the  returns,  and  that  therefore  he  is  entitled  to 
have  them  counted  for  him  in  case  the  returns  are  set  aside  for  fraud. 
And  as  the  contestant  has  failed  to  introduce  any  witnesses  to  testify  that 
they  voted  for  him  at  said  poll,  that  therefore  he,  contestant,  is  not  en- 
titled to  have  any  votes  counted  for  him  at  said  poll;  thereby  giving 
contestee  308  majority  at  said  poll  instead  of  258  majority  fraudulently 
returned  for  him  by  bis  political  friends,  thus  enabling  him  and  them  to 
succeed  by  their  own  wrongs  to  a  greater  extent  than  their  criminal  acts 
standing  alone  would  justify.  But  the  statements  of  these  308  witnesses 
■will  hardly  sustain  this  assumption  by  the  contestee.  A  large  number  of 
them  do  not  testify  that  they  voted  for  contestee,  but  that  they  voted  the 
Eepublican  ticket;  mauy  of  them  could  not  read,  as  we  have  already 
said,  and  therefore  they  had  to  depend  upon  others  for  the  kind  of 
tickets  they  voted,  and  were  liable  to  be  deceived;  but  however  this  may 
be,  your  committee  is  of  the  opinion  that  this  view  of  the  cavse  cannot 
be  sustained  under  the  proof.  The  proof  shows  that  contestant  did  get 
votes  at  said  poll,  and  that  he  probably  got  somewhere  from  136  to  141. 
Your  committee  admits  that  if  there  was  no  evidence  other  than  the 
returns,  they  being  fraudulent  and  void,  proving  that  the  contestant  re- 
ceived votes  at  said  poll,  then  it  would  be  unquestionably  right  to  count 
the  vote  clearly  proven  to  have  been  cast  for  contestee.  But  when  the 
proof  shows  that  a  large  number  of  votes  were,  in  point  of  fact,  cast  for 
one  candidate,  as  for  the  contestant  in  this  case,  but  the  number  not 
being  sufficiently  certain  to  enable  them  to  be  counted,  it  seems  to  your 
committee  to  be  manifest  injustice  to  count  the  votes  of  his  opponent, 
thereby  increasing  his  majority  to  the  full  number  of  votes  so  counted. 
There  is  no  rule  of  law  or  equity  that  will  justify  such  action,  but  it 
would  be  a  clear  case  of  uncertainty  in  the  proof,  and  stands  in  the  same 
position  as  to  uncertainty  as  the  other  x>ositious  assumed,  and  the  entire 
vote  must  be  rejected. 


FINLEY   VS.   BISBEB.  89 

Your  committee  has  therefore  come  to  the  following  conclusions  as  to 
this  precinct: 

Ist.  That  the  result  of  the  election  as  shown  by  the  returns  is  false 
and  fraudulent. 

2d.  That  from  the  other  evidence  in  the  case  it  is  impossible  to  ascer- 
tain the  true  vote  of  said  poll. 

The  vote  must,  therefore,  in  the  opinion  of  your  committee,  be  entirely 
rejected. 

Waldo  precinct,  Alachua  County. 

Contestee  asks  that  the  returns  from  this  precinct  be  rejected  for  the 
reason  that  the  inspectors  grossly  disregarded  the  election  law,  so  as  to 
render  the  returns  unreliable,  and  because  said  inspectors  allowed  pas- 
sengers on  the  railway  to  vote  without  regard  to  residence,  age,  or 
registr.ition,  and  that  a  large  number  of  such  persons  did  so  vote  for 
member  of  Congress  with  the  knowledge,  consent,  and  connivance  of 
the  inspectors;  such  persons  not  being  citizens  of  the  State  of  Florida. 
All  the  facts  shown  in  regard  to  this  subject  will  be  found  in  the  evi- 
dence of  Burr,  Record,  p.  3^3;  Noyes,  p.  362,  and  Earle,  p.  364.  And 
after  a  careful  examination  of  their  testimony  your  committee  is  satis- 
fied that  there  was  no  disregard  of  the  election  laws  by  the  inspectors 
at  this  precinct  which  indicates  any  desire  to  commit  fraud,  and  that  the 
testimony  is  such  that  the  true  vote  can  be  clearly  ascertained.  Your 
committee  also  find  that  the  20  persons  who  voted  at  this  precinct  who 
did  not  reside  in  the  county  only  voted  for  electors  for  President  and 
Vice-President  of  the  United  States,  with  the  exception  of  one,  whose 
name  is  William  Ford,  who  voted  for  contestant  for  Congress.  The 
evidence  shows  that  all  other  persons  whose  names  were  not  on  the  reg- 
istration-list were  sworn  before  they  were  allowed  to  vote. 

In  the  opinion  of  your  committee,  after  deducting  the  vote  of  said 
William  Ford  from  the  vote  of  contestant,  the  vote  as  returned  from 
this  precinct  should  be  counted. 

Wacasassee  precinctf  Alachua  County. 

The  allegations  in  regard  to  this  precinct  on  the  part  of  the  contestee 
are  not  sustained  by  the  proof.  He  does  not  attempt  to  prove  any, 
except  tlie  one  in  regard  to  intimidation,  and  minors  voting.  The  proof 
entirely  fails  to  show  intimidation,  in  the  opinion  of  your  committee. 
Wassou,  the  Eepublicau  inspector,  and  only  witness  who  testifies  in 
regard  to  this  precinct,  says  he  doubted  some  of  the  voters  who  voted 
were  of  age,  as  he  did  not  know  them,  but  that  they  made  oath  that 
they  were  21  years  of  age.  We  are  of  the  opinion  that  this  precinct 
should  be  counted. 

This,  we  believe,  disposes  of  all  the  questions  of  fact  at  issue  between 
the  parties  in  regard  to  the  election  in  Alachua  County,  with  the  excep- 
tion of  the  questions  arising  under  the  constitution  of  the  State  of  Florida 
in  regard  to  the  rights  of  foreign -born  persons  to  vote,  and  the  ques- 
tions arising  under  the  registration  laws  of  said  State.  And  as  these 
questions  will  have  to  be  met  in  the  investigation  of  the  facts  arising 
in  some  of  the  other  counties,  they  had  just  as  well  be  disposed  of  here 
by  the  committee;  and — 

1st.  As  to  the  questions  arising  under  the  constitution  in  regard  to 
foreign-born  citizens. 

The  contestee  alleges  that  seven  votes  in  Alachua  County,  five  in 


90  DIGEST   OF   ELECTION   CASES. 

Columbia  County,  ten  in  Xassau  County,  twelve  in  Putnam  County, 
and  fifty  in  Duval  County  should  be  rejected  on  the  ground  that  they 
were  alien  born,  and  did  not  at  the  time  they  voted  present  certified 
copies  of  their  naturalization  papers,  or  of  their  declaration  of  intention 
to  become  naturalized. 

On  a  careful  examination  of  the  evidence,  your  committee  find  that 
all  of  said  voters  had  either  been  naturalized  or  declared  their  intention 
to  become  so,  with  the  exception  of  one  in  Alachua  County  and  six  in 
Duval  County.  Your  committee  also  find  from  the  evidence  that  said 
voters  were  not  challenged,  and  were  not  either  requested  or  required 
to  produce  their  naturalization  papers  by  the  ofidcers  conducting  the 
election  at  the  various  precincts  where  they  voted. 

It  is  upon  this  state  of  facts  that  the  question  is  presented  whether 
these  persons  were  qualified  voters  under  the  constitution  and  laws  of 
Florida. 

The  qualifications  of  voters  in  Florida  are  prescribed  and  defined  in 
section  1  of  Article  XIV  of  the  constitution  of  that  State,  as  follows: 

Sec.  1.  Every  male  person  of  the  age  of  twenty-one  years  and  upwards,  of  whatever 
race,  color,  nationality,  or  previous  condition,  who  shall  at  the  time  of  offering  to  vote 
be  a  citizen  of  the  United  States,  or  who  shall  have  declared  his  intention  to  become 
such  in  conformity  to  the  laws  of  the  United  States,  and  who  nhall  have  resided  and 
had  his  habitation,  domicile,  home,  and  place  of  permanent  abode  in  Florida  for  one 
year,  and  in  the  county  for  six  months  next  preceding  the  election  at  which  he  shall 
offer  to  vote,  shall  in  such  county  be  deemed  a  qualified  voter  at  all  elections  under 
this  constitution.     (See  Acts  of  1868,  containing  the  State  constitution,  p.  211.) 

The  third  section  of  the  same  article  of  the  constitution,  and  the  one 
on  which  the  contestee  relies,  does  not  create  any  additional  qualiJiGations 
for  voters,  but  only  prescribes  a  regulation.    It  reads  as  follows: 

Sec.  3.  At  any  election  at  which  a  citizen  or  subject  of  any  foreign  country  shall 
offer  to  vote  under  the  provisions  of  this  constitution,  lie  shall  present  to  the  persons 
lawfully  authorized  to  conduct  and  supervise  such  election,  a  duly  sealed  and  certi- 
fied copy  of  his  declaration  of  his  intention,  otherwise  he  shall  not  be  allowed  to  vote. 
And  any  naturalized  citizen  offering  to  vote,  shall  produce  before  said  persons  law- 
fully authorized  to  conduct  and  supervise  the  election,  the  certificate  of  naturalization, 
or  a  duly  sealed  and  certified  copy  thereof,  otherwise  he  shall  not  be  permitted  to 
vote.     (Acts  of  1868 — constitution,  sec.  3,  pp.  211-212.) 

In  the  opinion  of  your  committee  it  is  clear  that  section  1  of  Article 
XIV  prescribes  and  defines  all  the  qualifications  of  voters,  and  equally 
clear  that  section  3  does  not  create  any  additional  qualification. 

The  qualification  prescribed  by  section  1,  in  regard  to  foreign-born 
persons,  is,  that  at  the  time  they  ofter  to  vote  they  shall  either  be 
citizens  of  the  United  States,  or  shall  have  declared  their  intention  to 
become  such;  while  section  3  does  not  create  any  additional  qualifica- 
tion, but  only  undertakes  to  prescribe  the  mode  of  proof,  in  case  the 
right  of  such  persons  to  vote  shall,  at  the  time  they  offer  to  vote,  be 
disputed. 

Such  is  the  reasonable  interpretation  of  these  two  sections  of  the  con- 
stitution of  Florida,  when  taken  and  construed  together. 

Moreover,  this  is  the  construction  given  by  the  first  legislature  in  the 
State  of  Florida,  which  convened  under  the  eonstitution  of  1868,  and  it 
is  to  be  observed  that  very  many  of  the  members  of  said  legislature 
■were  also  members  of  the  convention  that  formed  the  constitution,  and 
your  committee  are  advised  that  this  construction  has  been  acquiesced 
in  by  every  legislature  that  has  convened  since  that  time. 

The  legislature  of  1868  treated  and  construed  the  third  section  of 
Article  XIV  of  the  constitution  as  being  merely  directory,  as  will  be  seen 


FINLEY   VS.    BISBEE.  91 

from  the  sixteentli  section  of  the  act  of  August  6,  1868,  which  provides 
as  follows: 

Sec.  16.  If  any  person  ofterinsc  to  vote  shall  be  clialleacjed  as  not  qualified,  by 
any  inspector,  or  by  any  other  elector,  one  of  the  board  shall  declare  to  the  persoa 
challenged,  the  qualifications  of  an  elector.  If  such  person  shall  claim  to  be  qualified, 
and  the  challenge  be  not  withdrawn,  one  of  the  inspectors  shall  administer  to  him  the 
following  oath  :  "  You  do  solemnly  swear  that  you  are  twenty-one  years  of  age;  ihat 
you  are  a  citizen  of  the  United  States  (or  that  you  have  declared  your  intention  to 
l)ecome  a  citizen  of  the  United  States  according  to  the  acts  of  Congress  on  the  subject 
of  naturalization);  that  you  have  resided  in  the  State  one  year,  and  in  the  county  six 
months  next  preceding  the  election  ;  that  you  have  not  voted  at  this  election,  and  that 
you  are  not  disqualified  to  vote  by  the  judgment  of  any  court;"  and  if  the  person  chal- 
lenged shall  take  such  oath  he  shall  be  allowed  to  vote.  (Pamphlet  acts  1868,  p.  5, 
sec.  16.) 

It  is  shown  by  the  testimony  in  this  case  that  none  of  these  alien-born 
voters,  except  one,  were  challenged;  that  their  naturalization  papers 
were  not  demanded;  that  they  were  allowed  to  vote  without  question, 
and  that  they  were  in  fact  (with  the  exception  of  seven),  at  the  time 
they  voted,  either  naturalized  citizens  of  the  United  States,  or  had  de- 
clared their  intention  to  become  such,  as  required  by  section  1  of  Article 
XIV  of  the  constitution  of  the  State.  And  your  committee  are  of  the 
opinion  that,  as  they  are  proven  to  have  possessed  the  qualification  of 
citizenship  or  of  having  declared  their  intention  to  become  citizens  as 
required  by  the  constitution,  their  votes  should  not  be  rejected,  and 
they  deprived  of  the  highest  privilege  of  an  American  citizen,  which  they 
had  acquired  by  the  abandonment  of  their  native  land,  and  by  the  sol- 
emn renunciation  of  their  native  allegiance. 

It  is  the  settled  law  of  elections  that  where  persons  vote  without  chal- 
lenge, it  will  be  presumed  that  they  were  entitled  to  vote,  and  that  the 
sworri  oflBcers  of  the  election  who  received  their  votes  performed  their 
duty  properly  and  honestly,  and  the  burden  of  proof  to  show  the  contrary 
devolves  on  the  party  denying  their  right  to  vote. 

In  this  case,  so  far  from  the  evidence  showing  that  the  persons  in  ques- 
tion were  not  entitled  to  vote,  it  shows  that  they  were  either  naturalized, 
or  had  declared  their  intention  to  become  so,  and  the  contestee  has  failed 
to  prove  anything  to  the  contrary. 

"  It  is  quite  settled,"  says  Mr.  McCrary  in  his  work  on  elections,  "that 
where  one  who  is  alien-born  has  voted  at  an  election,  the  Imv  presumes 
that  he  has  been  naturalized,  until  the  contrary  appears."  (McCrary, 
sec.  294,  citing  New  Jersey  case,  2  Cong.  Cases.) 

It  is  therefore  seen  that  a  person  who  has  voted  is  presumed  to  have 
been  qualified  until  the  contrary  is  shown.  Mr.  McCrary,  in  section 
62  of  his  Treatise  on  Contested  Elections,  says,  that  the  contrary  may 
be  presumptively  shown  by  proof  that  the  voter  has  failed  to  produce 
the  proof  required  by  law  before  voting;  in  which  case  it  is  incumbent 
on  the  person  claiming  his  vote  to  show  affirmatively  that  he  was  a  qual- 
ified voter.     (McCrary,  sec.  62.) 

This  has  been  done  by  the  contestant  in  all  the  cases  of  this  class,  ex- 
cept in  the  few  instances  already'  mentioned. 

Your  committee  also  find  it  to  be  the  law,  that  "evidence  which  might 
have  been  sufficient  to  put  the  voter  on  his  explanation  if  challenged  at 
the  polls,  is  not  deemed  to  be  sufficient  to  i)rove  a  vote  illegal  after  it 
has  been  admitted."    (McCrary,  sec.  371.) 

Section  1  of  Article  XIV  of  the  constitution  of  Florida  defines  and 
determines  the  qualifications  of  voters  in  that  State,  while  section  3 
of  the  same  article  only  prescribes  a  regulation;  and  it  is  a  settled  prin- 


92  DIGEST  OF  ELECTION  CASES. 

ciple  of  lavr,  that  the  right  to  vote  must  not  be  impaired  by  the  regula- 
tion.     (McCrary,  sec.  8.) 

It  appears  from  the  evidence  that  the  larger  portion  of  these  alien- 
born  voters  had  been  naturalized,  and,  so  far  as  they  are  concerned,  the 
question  is  conclusively  settled  by  section  1  of  the  fourteenth  amend- 
ment of  the  Federal  Constitution,  which  contains  the  following  pro- 
vision, to  wit:  "That  all  persons  born  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside";  and  "no  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States." 

After  having  fully  considered  both  the  law  and  the  facts  of  the  case, 
your  committee  are  of  the  opinion  that  none  of  these  votes  should  be 
rejected  except  one  in  Alachua  County  aud  six  in  Duval  County,  in  re- 
gard to  whom  the  contestant  has  not  shown  affirmatively  that  they  were 
either  naturalized  or  had  declared  their  intention  to  become  so. 

2d.  As  to  the  question  of  registration  under  the  laws  of  the  State  of 
Florida,  the  contestee  alleges,  in  his  answer,  that  in  several  of  the  coun- 
ties in  said  district  a  number  of  persons  voted  whose  names  were  not 
found  on  the  registration  list  of  the  county  in  which  they  voted. 

Section  7  of  the  election  law  of  the  State  of  Florida  provides  for  the 
registration  of  the  voters  in  the  several  counties  of  the  State,  and  the 
manner  of  doing  the  same.  The  clerk  of  circuit  court  of  each  county 
is  required  to  prepare  a  suitable  book  for  the  registration  of  the  names  of 
the  electors  residing  in  his  county;  that  the  oath  required  to  be  taken 
by  the  electors  shall  be  written  or  printed  therein;  that  the  names  of  the 
electors  shall  be  alphabetically  arranged  in  said  book,  and  the  date  of 
registration,  &c. 

Section  9  of  the  same  law  provides  that  the  board  of  commissioners 
of  each  county  must  meet  at  the  clerk's  office  in  their  respective  coun- 
ties within  thirty  dajs  preceding  the  day  on  which  any  election  shall  be 
held,  and  examine  the  list  of  registered  electors,  and  erase  therefrom 
the  names  of  such  persons  as  are  known  or  may  be  shown  to  their  sat- 
isfaction to  have  died  or  ceased  to  have  resided  permanently  in  the 
county,  or  otherwise  becoming  disqualified  to  vote. 

This  section  gives  the  board  of  commissioners  a  large  discretionary 
power.    They  may  erase  names  from  the  registration-list  at  discretion. 

This  would  be  a  very  dangerous  power  indeed,  and  might  deprive  many 
electors  of  their  right  to  vote  by  having  their  names  wrongfully  stricken 
or  erased  by  the  board  of  commissioners  from  the  registration-list,  were 
it  not  for  another  provision  of  the  law  which  provides  that  if  the  voter 
"  on  offering  to  vote,"  in  case  his  name  is  not  found  on  the  registration- 
list,  "  will  take  an  oath  that  his  name  has  been  improperly  "  struck  off 
from  "  the  list  of  registered  voters,  and  shall  take  the  oath  required  to 
be  taken  by  persons  whose  right  to  vote  shall  be  challenged,  such  per- 
son shall  have  the  right  to  vote." 

Now  it  is  clear  that  if  a  person  offering  to  vote,  whose  name  has  once 
been  on  the  registration  list  of  the  county,  but  which  has  been  wroug- 
fuUy  erased  therefrom  by  the  county  commissioners,  takes  the  oath  that 
his  name  has  been  improperly  erased,  that  he  is  then  legally  entitled  to 
vote,  and  if  he  does  vote,  possessing  the  other  qualifications  under  the  law, 
his  vote  must  be  counted.  The  contestee  does  not  aver  for  whom  these 
non-registered  voters,  which  he  insists  are  illegal,  cast  their  votes,  neither 
does  he  undertake  to  prove  for  whom  they  did  vote,  but  he  asks  that 
thej"  be  deducted  from  the  vote  of  the  contestant.  This,  of  course,  can- 
not be  done.    But  under  the  rule  it  does  not  follow  that  illegal  votes 


FINLET   VS.    BISBEE.  93 

mnst  be  coiinted  in  making  np  the  true  result,  because  it  cannot  be  ascer- 
tained for  whom  they  were  cast.  In  purging  the  polls  of  illegal  votes 
the  general  rule  is  that  unless  it  be  shown  for  which  candidate  they  were 
cast,  they  are  to  be  deducted  from  the  whole  vote  of  the  election  divis- 
ion, and  not  from  the  candidate  having  the  largest  number.  (McCrary 
on  Elections,  p.  223 ;  Shepherd  r.  Gibbons,  2  Brewster,  128}  McDaniel's 
Case,  3d  Penn.,  L.  F.,  310;  Cushing's  Election  Case,  583.) 

Of  course,  in  the  ai)plication  of  this  rule,  such  illegal  votes  would  be 
deducted  proportionate^^-  from  both  candidates,  according  to  the  entire 
vote  returned  for  each.     (McCrary,  p.  223.) 

This  is,  i)erhaps,  the  best  rule  that  can  be  adopted  in  such  case.  It  is 
manifest,  however,  that  it  may  sometimes  work  a  great  hardship;  for 
the  truth  might  be,  if  it  could  be  shown,  that  all  the  illegal  votes  were 
cast  for  one  of  the  candidates,  while  it  is  scarcely  to  be  presumed  that 
they  would  ever  be  divided  between  the  candidates  in  exact  proportion 
to  their  whole  vote.  But  the  rule  that  would  deduct  them  all  from  either 
one  of  the  candidates,  in  the  absence  of  proof  as  to  how  the  illegal  votes 
were  cast,  is  much  more  unreasonable  and  dangerous.  The  above  rule 
is  perhaps  the  safest  one  to  be  adopted  in  a  court  of  justice,  where  there 
is  no  power  to  order  a  new  election,  and  where  great  injury  would  result 
from  declaring  the  office  vacant.  But  it  is  manifest,  as  we  have  already 
said,  that  it  might  work  a  great  hardship.  And  in  a  legislative  body, 
having  the  power  to  order  a  new  election,  it  is  safer,  in  the  oi)inion  of 
your  committee,  and  more  conducive  to  the  ends  of  justice,  to  order 
such  new  election,  than  to  reach  a  result  by  the  ai)plication  of  such  a 
rule.     (McCrary,  pp.  224,  22.>.) 

Under  the  rules  above  referred  to,  it  may  be  that  the  averments  in  the 
answer,  by  a  very  liberal  construction,  are  sufficient  to  let  in  the  proof  of 
contestee,  to  show  that  illegal  votes  were  cast,  on  the  grounds  averred. 

Your  committee  will  therefore  consider  the  evidence,  and  determine 
whether  it  proves  that  illegal  votes  were  cast  under  the  reasons  assigned. 

The  contestee  oflers  in  evidence  the  certified  copies  of  the  registration- 
lists  of  the  counties ;  also  the  poll-lists  of  the  precincts  of  said  counties; 
and  he  invites  a  comparison  of  the  names  on  the  poll-list  with  the  names 
found  on  the  registration-list,  and  insists  that  the  votes  of  all  persons 
whose  names  appear  on  the  poll-list  a«  having  voted,  but  whose  names 
are  not  found  on  the  registration-list,  be  declared  void,  for  the  reason 
that  such  votes  are  illegal. 

Your  committee  does  not  agree  with  this  view  of  the  question.  If  a 
person  vote  in  a  county  in  Florida,  having  all  the  qualifications  of  a  voter 
of  said  county  except  that  his  name  has  never  been  registered  in  said 
county,  his  vote,  in  the  opinion  of  your  committee,  would  be  illegal,  or 
if  the  name  of  such  person  having  once  been  on  the  registration-list  of 
said  county,  but  having  been  erased  therefrom  by  the  board  of  commis- 
sioners, afterward  cast  his  vote  without  having  first  taken  the  oath  that 
his  name  had  been  improperly  stricken  "ofifrom"  the  list  of  registered 
voters,  his  vote  would  also  be  illegal.  But  suppose  we  examine  the  poll- 
list  and  find  the  name  of  a  voter  thereon  as  having  voted,  and  we  then 
turn  to  the  registration-list  and  find  his  name  is  not  on  that,  can  it  there- 
fore be  said  that  he  voted  illegally  ?  Certainly  not.  If  a  person  vote^ 
at  an  election,  his  vote  is  presumed,  under  the  law,  to  be  legal  until  the 
contrary  be  proven  in  a  legal  way,  for  the  reasons — 

1st.  That  the  acts  of  an  officer  or  officers  of  an  election  within  the 
scope  of  this  authority  are  presumed  to  be  correct  and  honest  until  the 
contrary  is  made  to  appear,  and  therefore  that  they  as  such  officers 
would  not  receive  an  illegal  vote. 


94  DIGEST   OF   ELECTION   CASES. 

2d.  That  the  presumption  is  always  against  the  commission  of  a  fraud- 
ulent or  illegal  act,  and,  therefore,  that  a  man  would  not  cast  an  illegal 
vote.  (McCrary  on  Electious,  sec.  87—440;  Little  v.  Eobins,  1st  Bart- 
lett,  p.  138;  Gooding  v.  Wilson,  Forty-second  Congress.) 

This  presumption  must  be  overcome  by  positive  proof.  Take  the  case 
of  a  voter.  His  name  is  on  the  poll-list  of  a  certaiu  precinct  showing 
that  he  voted  at  said  precinct;  his  name,  however,  is  not  found  on  the 
registration-list.  These  facts  are  not  sufficient  to  prove  that  his  vote  is 
illegal.  They  do  not  overcome  the  presumption  of  law  arising  in  favor 
of  the  legality  of  his  vote  under  the  above  rules.  His  name  may 
have  been  improperly  erased  from  the  registration-list  by  the  (iounty 
commissioners,  and  he  may  have  taken  his  oath  to  that  effect  before 
having  deposited  his  ballot  in  the  ballot-box,  and  the  legal  presumption 
is  that  he  did ;  and  in  that  case  his  vote  would  be  legal  if  his  name  had 
ever  been  on  the  registration.  The  certified  copy  of  the  poll-list  is  evi- 
dence that  he  voted.  But  a  certified  copy  of  the  registration-list  after  it 
has  been  revised  under  the  law  by  the  board  of  commissioners  is  not 
evidence  of  the  fact  that  his  name  was  never  on  the  registration,  for 
it  may  have  been  erased  therefrom  by  said  board,  and  then  it  would 
cease  to  be  a  part  of  the  record  of  registration,  and  a  certified  coj\v  of 
the  record  of  registration  would  not  contain  his  name,  neither  would  it 
show  that  his  name  had  been  erased  therefrom;  for  the  law  of  Florida 
does  not  provide  that  a  record  of  the  names  of  persons  erased  from  the 
registration-list  shall  be  made.  There  is  no  legal  way  of  preserving 
them  on  the  record.  The  fact  cannot  be  proven  by  the  record,  and  cer- 
tainly cannot  be  proven  by  the  certificate  of  the  clerk  attached  to  what 
purports  to  be  a  copy  of  a  record  which  has  no  legal  existence,  for  the 
clerk  can  only  certify  to  records  in  such  case,  and  his  certificate  to  a  fact 
in  this  case,  outside  of  the  records  legally  in  his  custody  and  of  which 
he  is  legally  authorized  to  give  certified  copies  under  his  hand  and  seal, 
amounts  to  no  more  than  the  certificate  of  a  private  individual  to  a 
given  fact.  The  fact  may  be  true,  but  the  certificate  is  no  evidence  of 
it.  Therefore,  the  fact  that  the  name  of  a  person  who  is  shown  to  have 
voted  never  was  on  the  registration  list,  must  be  proven  in  the  same 
manner  you  would  prove  any  other  fact  not  of  record.  The  contestee, 
relying  upon  the  certified  copies  of  what  he  claims  to  be  the  list  of  per- 
sons whose  names  have  been  erased  from  the  registration-list  to  prove 
the  facts  they  contain,  must  fail  on  this  point. 

But  the  contestee  undertakes  in  another  way  to  prove  that  the  votes  of 
persons  whose  names  appear  on  the  certified  copy  of  the  poll-list  of  a 
particular  precinct  as  having  voted,  and  whose  names  do  not  appear  on 
the  certified  copy  of  the  registration-list  of  the  county,  are  illegal.  And 
to  do  so,  he  introduces  H.  Jenkins,  jr.,  and  Ed.  Higgins  as  witnesses  to 
testify,  who,  it  is  claimed,  silent  two  months  in  gathering  the  facts  in 
regard  to  this  question. 

We  will  consider  the  evidence  of  these  witnesses. 

1st.  As  to  the  statement  of  H.  Jenkins,  jr.  He  swears  that  the  paper 
handed  him,  marked  Exhibit  A  (found  on  page  650  of  the  Eecord),  is  a 
list  of  persons  who  voted  at  People's  Mill,  No.  4,  Jasper,  No.  2,  Beunam's 
•Mills,  No.  7,  and  White  Springs,  No.  3,  precincts  in  Hamilton  County,  in 
said  district,  whose  names  have  been  stricken  from  the  registration-list  of 
said  county.  "This,"  he  says,  "  I  have  ascertained  by  the  examination 
of  certified  copies  of  poll-lists  of  the  precincts  named,  the  registration- 
list  of  the  county,  and  a  list  of  the  names  of  persons  who  have  been 
stricken  from  the  registration-list,  all  certified  to  hy  the  clerk  of  Hamilton 
County  J  Florida.''''    The  contestee  oflers  the  paper  in  evidence. 


FINLEY   VS.    BISBEE.  95 

Kow,  as  your  committ€e  has  already  said  in  effect,  this  paper  marked 
Exhibit  A  is  not  evidence  under  tlie  law  of  Florida,  and  we  know  of 
no  rnle  of  law  which  would  make  it  evidence  for  the  purposes  for  which 
it  is  introduced,  or  indeed  any  other  purpose.  Witness  says  it  is  a  list 
of  persons  whose  names  do  not  appear  on  the  registration -list.  How 
does  he  know  this  fact?  He  says  he  knows  it  by  an  examination  of 
copies  of  the  poll-lists,  registration-lists,  and  a  certified  copy  of  a  list  of 
names  stricken  from  the  registration-lists. 

Your  committee  has  already  decided  that  a  certified  copy  of  a  list  of 
names  stricken  or  erased  from  the  registration-list  is  not  evidence  for 
any  purpose  in  this  case.  If  it  was,  oral  evidence  is  not  inadmissible  to 
prove  its  contents.  The  statements  of  this  witness,  therefore,  in  regard 
to  the  contents  of  the  certified  copies  of  the  lists  to  which  he  refers 
cannot  be  considered. 

The  statements  of  the  witness  Ed.  Higgins  are  to  the  same  effect. 
He  states  that  he  has  carefully  examined  the  certified  copies  of  the  reg- 
istration and  poll  lists,  and  a  list  of  names  stricken  from  the  registra- 
tion-lists, "  071(1  by  examination  of  other  papers  tcliich  have  been  placed  on 
file  in  connection  icith  these  exhibits,^''  in  regard  to  the  election  in  the 
counties  of  Suwannee,  Putnam,  Clay,  Volusia,  Orange,  Alachua,  Colum- 
bia, Bradford,  and  Hamilton,  in  said  Congressional  district,  and  from 
this  examination  and  comparison  of  these  papers  the  witness  undertakes 
to  swear  that  certain  lists  marked  Exhibits  A,  B,  C,  D,  E,  F,  G,  H,  and 
I  contain  the  names  of  persons  who  voted  in  these  counties,  whose 
names  do  not  appear  on  the  registration-lists  of  said  counties.  These 
statements  made  by  the  witness  are  inadmissible.  The  papers  them- 
selves are  the  best  and  only  evidence  of  what  they  contain,  if  they  are 
admissible  for  any  purpose.  The  committee  must  make  the  comparison 
and  cannot  take  the  statements  of  the  witness  as  to  the  result  of  his 
comparison. 

Your  committee  is  of  the  opinion  that  this  proof  is  insuflBcieut  to  prove 
that  these  persons  voted  illegally  whose  names  are  not  ftnmd  ou  the 
registration-lists  of  their  respective  counties.  If  they  took  the  oath  that 
their  names  had  been  improperly  erased  from  the  registration-list — and 
the  proof  thus  far  is  insutficient  to  overcome  the  presumption  that  they 
did — their  votes  are  legal.  The  contestee  undertakes  to  overcome  the 
presumption  in  favor  of  the  legality  of  this  class  of  votes  in  another 
way.  On  sbme  of  the  poll-lists  of  the  precincts  in  these  counties  is 
found  at  the  end  of  some  of  the  names  of  the  persons  voting  these 
words,  "Not  sworn."  At  the  end  of  others  the  word  "  Sworn."  Now, 
it  is  contended  by  contestee  that  whenever  you  find  a  name  on  the  poll- 
list  of  any  precinct  with  the  words  "  not  sworn  "  written  after  it,  which 
name  is  not  found  on  the  registration-list  of  the  respective  county, 
that  the  vote  of  such  person  is  illegal.  This  position  cannot  be  main- 
tained, for  reasons  which  we  have  heretofore  stated.  But  we  will  further 
say  that  the  law  does  not  authorize  the  election  officers,  or  either  of 
them,  to  write  the  words  "  not  sworn  "  or  "  sworn"  on  the  poll-list  after 
the  names  of  the  voters  who  have  voted  and  whose  names  are  not  found 
on  the  registration  list  of  the  county  in  which  they  vote,  whether  such 
l>ersons  were  sworn  or  not  before  they  voted.  The  writing  of  these 
words  are  therefore  unofficial  acts,  and  not  a  part  of  the  poll-list  under 
the  law,  and  not  evidence,  and  cannot  be  made  so  b^*  a  certified  copy  of 
the  poll  list,  as  is  here  attempted  to  be  done.  It  would  be  a  very  dan- 
gerous rule,  indeed,  which  would  permit  everything  which  appears  ou 
the  face  of  a  record  to  beconie  evidence,  whether  placed  there  by  au- 
thority of  law  or  by  the  unofficial  acts  of  irresponsible  persons.    How 


96  DIGEST   OF   ELECTION   CASES. 

these  words  came  to  be  written  on  these  poll-lists,  or  by  whom  they  were 
so  written,  the  evidence  does  not  show.  But  it  is  enough  for  your  com- 
mittee to  know  that  they  were  not  placed  there  pursuant  to  any  law, 
and  cannot  be  considered  as  evidence. 

Your  committee  is,  therefore,  of  the  opinion  that  the  evidence  does 
not  jjrove  that  the  votes  cast  by  persons  whose  names  were  not  found 
on  the  registration-lists  of  the  counties  in  which  they  voted  are  illegal. 
The  evidence  does  not  prove  that  they  did  not  take  the  oath  required 
by  law  in  such  case.  There  being  no  further  questions  affecting  the 
vote  of  Alachua  County,  it  must  be  counted  as  follows : 

Deduct  from  contestant's  vote,  as  given  in  the  tabulated  statement 
in  the  fore  part  of  this  report,  141  votes  returned  for  him  at  Archer 
precinct,  No.  2,  and  1  vote  cast  by  William  Ford,  a  non-resident,  at  Waldo 
precinct,  1  foreign  vote,  in  all  142.  And  deduct  from  the  vote  of  con- 
testee,  as  shown  by  the  same  statement,  the  399  votes  returned  for  him 
at  said  Archer  precinct,  No.  2,  and  the  remainders  will  be  the  true  vote 
of  the  county. 

BAKER  COUNTY. 

The  principal  question  in  regard  to  the  election  in  this  county  is 
whether  the  returns  from  the  precincts  of  Johnsville  and  Darby  ville,  in 
said  county,  shall  be  counted.  That  the  returns  from  these  precincts 
are  regular  will  appear  from  the  inspection  of  the  returns  themselves. 
(See  Exhibits  B  and  D,  Eecord,  pages  49-51.)  Why  these  returns  were 
rejected  by  the  canvassing  boards  your  committee  need  not  determine, 
as  that  question  is  not  necessarily  before  us.  But  it  is  our  duty  to  ascer- 
tain the  true  vote  of  these  precincts  if  we  can  do  so.  And  in  order  to 
do  so  your  committee  will  go  behind  all  returns  and  look  at  the  facts, 
if  necessary.  That  the  returns  from  these  two  precincts  should  have 
been  counted  by  the  cauvaissiug-boards,  your  committee  can  have  no 
doubt  after  a  careful  examination  of  the  evidence  in  regard  to  that 
XJoint;  and 

That  the  election  at  both  of  said  precincts  was  fairly,  peaceably,  and 
honestly  conducted  is  abundantly  shown  by  the  testimony  of  Edward 
Rowe  and  William  Noble,  inspectors  of  election  at  Darby  ville,  and  Gor- 
don S.  Taylor  and  W.  S.  Cobb,  inspectors  at  Johnsville.  They  testify 
as  follows : 

Deposition  of  Edward  Eowe. 

Edward  Rowe,  of  the  county  of  Baker,  being  duly  sworn,  deposes  and  says: 

Question.  What  is  yonr  name? — Answer.  Edward  Rowe. 

Q.  Where  do  you  reside  ? — A.  lu  Baker  County,  State  of  Florida. 

Q.  Where  were  you  on  the  7th  of  November  last,  at  the  general  election  in  the  State 
of  Florida? — A.  At  the  Darbj'ville  precinct,  in  Baker  County,  in  said  State. 

Q.  Was  there  an  election  held  there  that  day  for  member  of  Congress  and  other 
officers,  Federal  and  State? — A.  Yes,  sir. 

Q.  Were  you  or  not  an  election  officer  at  that  precinct  on  that  day ;  and,  if  so, 
•what  office  did  you  hold  ? — A.  I  was  one  of  the  managers  of  the  election  at  that  pre- 
cinct. 

Q.  Were  you  sworn  as  such  manager? — A.  Yes,  sir. 

Q.  Were  you  there  all  the  time  during  the  election  on  that  day? — A.  I  was,  and 
served  as  a  manager  or  inspector. 

,  Q.  Who  were  the  other  managers  and  clerk  at  said  precinct  at  said  election? — A. 
Mr.  Elisha  Green  and  Mr.  William  Nobles  were  the  inspectors,  and  John  Mclvor  was 
clerk. 

Q.  Was  the  election  there  on  that  day  peaceable  and  fairly  and  honestly  con- 
ducted ? — A.  It  was. 

Cross-examination : 
Q.  Did  any  one  vote  at  that  precinct  on  that  day  that  was  not  a  registered  voter  ? — 
A.  If  there  was,  I  did  not  know  it. 


FINLEY    VS.    BISBEE.  97 

Q.  Did  or  did  uot  electors  at  that  precinct  bave  tickets  taken  out  of  their  hands 
by  force,  and  other  tickets  forced  upon  them  to  vote! — A.  If  there  was,  I  did  not  see 
anything  of  it. 

Re-examined  hy  contestant: 
Q.  Were  you  in  a  position  where  you  could  look  out  upon  the  voters  around  the 
polls  during  that  day  f — A.  I  was. 

hia 
EDWARD  +  ROWE. 
mark. 
Witness: 

John  Herndon, 

County  Judge,  Baker  County,  Florida. 

Deposition  of  William  Nobles. 

William  Nobles,  being  dtily  sworn,  deposes  and  says: 

Question.  What  is  your  name? — Answer.  William  Nobles. 

Q.  Where  do  yon  reside  ? — A.  In  Baker  County. 

Q.  Where  were  you  on  the  7th  day  of  November  last! — A.  I  was  at  Darby  ville  pre- 
cinct, 'u  Bakt'r  County. 

Q.  Was  there  an  election  held  there  on  that  day  for  governor,  lieutenant-governor, 
Presidential  electors,  and  member  of  Congress  for  the  second  Congres-sional  district 
of  Florida? — A.  There  was. 

Q.  Were  you  not  an  election  oflticer  at  that  precinct  at  said  election?  And  if  so, 
state  what  otHce  it  was. — A.  I  was  manager  and  inspector. 

Q.  Were  you  duly  sworn  as  such  manager  and  inspector? — k.  I  was. 

y.  Was  tlie  elt'ctiou  there  on  that  day  peaceable  and  fairly  and  honestly  con- 
ducted?— A.   It  was. 

Q.  Do  yoti  remember  who  were  the  other  inspectors  at  that  precinct? — A.  Mr. 
Green  and  Mr.  Howe. 

Q.  Who  was  the  clerk  at  said  election? — A.  Mr.  John  Mclvor. 

Cross-examined : 

Q.  Who  administered  the  oath  to  you  as  inspector? — A.  I  do  not  remember  who 
administered  tlie  oath  to  me  as  inspector,  but  I  know  I  was  sworn  as  such. 

Q.  How  do  you  know? — A.  I  was  sworn  to  see  that  the  election  was  conducted 
fairly. 

Q.   Did  you  >sign  any  oath  in  writing? — A.  I  did. 

Q.  Do  you  mean  when  you  say  the  election  was  conducted  fairly  and  honestly,  to 
refer  entirely  to  the  inspectors  and  managers  of  the  election? — A.  I  do. 

Re-examined : 
Q.  Were  you  sitting  where  you  could  look  out  upon  the  voters  about  the  polls 
while  the  election  was  going  on? — A.  I  was  sitting  where  I  could  see  a  portion  of 
the  crowd. 

'  Q.  Did  you  observe  any  disturbance  of  the  public  peace,  or  anything  that  was  un- 
fair or  dishonest  among  the  voters? — A.  I  saw  nothing  going  on  that  was  unfair  or 
dishonest;  no  disturbance  of  the  peace  or  riots;  everything  seemed  peaceable. 

Recross : 
Q.  Did  you  see  among  the  crowd  about  the  polls  any  person  or  persons  taking 
tickets  out  of  the  hands  of  voters  against  their  will  and  presenting  other  tickets  to 
them,  or  making  or  using  any  forcible  means  to  cause  voters  to  vote  against  their 
will? — X.  I  did  not  see  it. 

hia 
WILLIAM  -}-  NOBLES, 
mark. 
Attest: 

John  Herndon, 

County  Judge,  Baker  County,  Florida. 

Deposition  of  Gordon  S.  Taylor. 

Who,  being  duly  sworn,  deposes  and  says: 

Question.  What  is  your  name? — .\u8wer.  Gordon  S.  Taylor. 

Q.  Where  do  you  reside  now,  and  where  did  you  reside  on  7th  November  last? — ^A. 
In  Baker  Couuty. 

Q.  Were  you  at  a  general  election  held  in  Florida  on  the  7th  November  last;  if  so, 
at  what  precinct  and  what  county? — .\.  Johnsville  precintt.  Baker  Couuty. 

H.  Miijs.  S8 7 


98  DIGEST    OF    ELECTION    CASES. 

Q.  Did  yon  act  as  inspector  at  the  election  at  said  time  and  precinct?— A.  I  did. 

Q.  Were  yon  dnly  sworn  as  snch? — A.  I  was. 

Q.  Was  the  election  at  that  precinct  conducted  peaceably,  fairly,  and  honestly  ?- 
A.  It  was. 

Q.  Who  were  the  other  inspectors  who  acted  with  you? — A.  Elias  Williams  and 
William  C.  Cobb. 

ij.  Were  they  duly  sworn  as  such  ? — A.  They  were. 

Cross-examination : 

Q.  Who  administered  the  oath  as  such  inspector? — A.  Myself. 

Q.  As  what  officer  did  you  administer  the  oath? — A.  As  justice  of  the  peace. 

Q.  When  did  you  take  the  oath  and  administer  it  ? — A.  On  the  7th  day  of  November 
last. 

Q.  Did  you  see  any  one  at  the  election  at  your  precinct  being  prevented  from  voting 
by  force  or  threats  of  any  kind  ? — A.  I  did  not. 

Q.  Were  you  holding  any  other  office  on  the  7th  day  of  November  last  besides  that 
of  inspector  of  election  and  justice  of  the  peace? — A.  I  was  tax  assessor  and  collector. 

Q.  When  were  you  appointed  justice  of  the  peace  and  tax  assessor  and  collector? — 
A.  I  was  appointed  justice  of  the  peace  in  1875  and  tax  assessor  and  collector  m  1876, 
as  near  as  I  can  recollect. 

Q.  Were  you  or  were  you  not  appointed  tax  assessor  and  collector  after  you  were 
appointed  justice  of  the  peace? — A.  I  was. 

Q.  Did  you  qualify  in  both  offices? — A.  I  did. 

Re- examination : 
Q.  Were  you  an  acting  justice  of  the  peace  on  the  7th  day  of  November  last  ? — A. 
I  was. 

Q.  Did  you  administer  the  oath  to  Elias  Williams  and  William  C.  Cobb  on  that  day 
as  inspectors  of  the  election  at  said  Johnsville  precinct  ? — A.  I  did. 

G.  S.  TAYLOR. 

Deposition  of  William  C.  Cobb. 

Who,  being  duly  sworn,  deposes  and  says: 

Ques'ion.  What  is  your  name? — Answer.  William  C.  Cobb. 

Q.  Wiiere  do  you  reside  now  and  where  did  yon  reside  on  the  7th  November  last? — 
A.  In  Baker  County. 

Q.  Were  you  at  a  general  election  in  Florida  on  the  7th  November  last;  and,  if  so, 
at  what  precinct  and  in  what  county? — A.  In  Johnsville  precinct,  in  Baker  County. 

Q.  Did  yon  Jtct  as  inspector  of  election  at  said  precinct  ? — A.  I  did. 

Q.  Were  you  duly  sworn  as  such  ? — A.  I  was. 

Q.  By  whom  were  you  sworn  ? — A.  By  Gordon  S.  Taylor. 

Q,  Who  were  the  other  inspectors  that  acted  withyou? — A.  Elias  Williams  and 
Gordon  S.  Taylor. 

Q.  Was  the  election  at  said  precinct  conducted  peaceably,  fairly,  and  honestly  ? — 
A.  It  was. 

Cross-examined : 
Q.  Did  you  know  when  you  took  the  oath  before  Gordon  S.  Taylor  that  he  was  tax 
assessor  and  collector  of  Baker  County  ? — A.  Yes,  sir. 

WILLIAM  C.  COBB. 

Contestee  asks  that  75  votes  cast  and  counted  for  contestant  in  said 
county  be  rejected,  on  the  ground  that  they  were  cast  by  persons  who 
were  not  registered  in  compliance  with  law.  Your  committee  is  of  the 
opinion  that,  under  the  rules  of  law  laid  down  in  the  case  of  Alachua 
County,  in  regard  to  registration,  there  is  nothing  in  the  evidence  which 
sustains  the  charge.  The  e\idenee  shows  that  the  court-house  of  said 
county  bnrued  after  the  election,  and  it  pretty  clearly  appears  that  the 
records  of  the  clerk's  office,  including  the  registration-list,  poll-list,  and 
returns  of  the  election,  were  all  buincd.  There  is  an  attempt,  on  the 
part  of  contestee,  to  prove  that  some  of  the  i)ersons  registered  just 
before  the  election  were  not  legally  registered.  But  whetlier  they  had 
been  registered  before,  and  their  names  been  improperly  dropped,  does 
not  appear;  nor  whether  they  took  an  oath  to  the  effect  that  their  names 
had  been  improperly  <lroi>ped  from  the  registration-list  does  not  appear. 

There  is  no  attempt  at  proving,  by  the  contestee,  that  10  votes  were 


FINLEY    VS.    BISBEE.  99 

cast  for  contestant  by  nou-residents,  minors,  alien-born  persons,  «&c.,  as 
alleged.  Therefore,  the  vote  of  this  county  must  be  counted  as  returned 
by  the  precinct  oflQcers,  including  the  vote  of  Jolinsville  and  Darbyville 
precincts.  This  being  done,  the  vote  of  this  county  will  stand  as  fol- 
lows : 

Contestant 238 

Con  test  ee 143 

As  shown  in  said  tabulated  statement. 

BREVARD   COUNTY. 

The  testimony  of  John  M.  Lee  and  Quinn  Bass,  the  only  witnesses 
examined  by  coutestee,  fails  to  establish  the  fact  charged  that  there  was 
a  fraudulent  suppression  of  the  polls  at  any  precinct  in  this  county.  (Lee, 
p.  445;  Bass,  p.  442.) 

The  vote  must,  therefore,  be  counted  as  returned  by  the  precinct 
oflBcers. 

Contestant , Ill 

Contestee 5& 

BRADFORD   COUNTY. 

Contestee  asks,  in  his  answer,  that  Lake  Butler  i>recinct,  in  this  county 
be  rejected  on  the  ground  of  fraud,  &c.  But  he  abandoned  this  in  his 
l)rinted  argument  (p.  81).  He  only  insists  on  his  allegation  in  regard  to 
non  registered  voters.  We  do  not  think  the  proof  sufficient  to  justify 
the  throwing  out  of  any  vote  on  this  ground.  The  vote  should  be 
counted  as  set  forth  in  said  tabulatt  d  statement. 

Conlcstaiit ' 700 

Coutestee 199 

CLAY   COUNTY. 

Your  committee  is  of  the  opinion  that  the  entire  vote  of  this  county 
as  returned  by  the  precinct  officers  should  be  counted.  The  county 
board  of  canvassers  cotiuied  all  the  votes  of  this  county  except  No.  8 
(No.  11  Pond;  see  Record,  pp.  179,  180),  and  said  canvassers  say  in  their 
return  that  this  precinct  was  not  counted  for  tlie  reason  that  there  was 
no  evidence  that  the  inspectors  at  this  poll  were  sworn.  But  the  evi- 
dence in  the  record  shows  that  the  inspectors  were  sworn,  and  that  the 
election  at  said  precinct  was  honestly  and  fairly  conducted.  (Lyman 
Hall,  pp.  24,  25;  Buddingtou,  p.  26 ;  Ex.  A  and  B,  p.  27.) 

Even  the  fact  that  the  inspectors  of  the  election  were  not  sworn  will 
not  of  itself,  in  the  absence  of  fraud,  render  the  election  voi«l ;  and  as 
there  is  no  fraud  shown  at  this  poll  it  comes  within  the  rule.  (McCrary, 
sec.  305.) 

It  is  alleged  that  Elias  Padgett,  sr.,  was  a  non-resident  of  this  county, 
and  that  he  vote<l  at  Clay  Hill  precinct.  But  a  careful  examination  of 
the  evidence  tails  to  show  that  his  vote  was  illegal.  It  is  not  shown 
for  whom  he  vote<l  for  Congress.  We  think  the  evidence  does  not  prove 
that  any  illegal  votes  were  cast  in  this  county. 

The  vote,  therefore,  of  this  county  should  be  counted,  including  No.  S 
(No.  11  Pond),  which  gave  contestant  29  votes  and  contestee  G  votes. 

Contestant .315 

Coutestee 126 


100  DIGEST    OF    ELECTION    CASES. 

COLUMBIA    COUNTY. 

The  contestee  asks  that  the  vote  of  precinct  Xo.  4  be  rejected,  on  the 
ground  that  th.e  election  was  fraudulently  conducted  ;  that  the  returns 
were  tainted  with  fraud  by  the  inspectors  and  others  wrongfully  inter- 
fering with  the  election.  There  is  nothing  to  warrant  the  suspicion  of 
fraud  in  the  conduct  of  the  election,  either  in  the  action  of  the  inspect- 
ors or  by  the  interference  of  other  parties. 

The  contestee  attempts  to  prove  that  Daugherty,  one  of  the  inspect- 
ors at  said  precinct,  threw  a  Republican  ticket  under  the  table  and  i)ut 
another  in  the  ballot-box  in  its  place.  And  to  do  this,  he  introduces  Small, 
Taylor,  and  Jordan.  (See  Record,  pp.  447-467-498.)  An  examination 
of  their  evidence  shows  that  they  contradict  themselves  and  each  other 
to  such  an  extent  as  to  render  their  statements  altogether  unreliable. 
But  they  are  clearly  contradicted  by  other  witnesses.  Besides,  the  vera- 
city of  Small  and  Jordan  has  been  fully  discredited  by  four  unimpeached 
witnesses.  (See  evidence  of  Thompson,  Kecord,  pp.  109,  170;  Kirby, 
Eecord,  p.  171 ;  Potsdamn.  Record,  p.  170;  Henry,  Kecord,  p.  170.) 

Again,  the  testimony  of  Small,  Taylor,  and  Jordan  is  fully  contradicted, 
not  only  l>y  Daugherty,  but  by  Brown,  who  was  a  challenger,  and  was 
present  at  said  precinct  all  day.  (See  evidence  of  Daugherty,  Record, 
142 ;  Brown,  Record,  149.)  Contestee  asks  that  the  return  from  said  pre- 
cinct should  be  rejected  on  the  further  ground  that  the  poll-list  was 
fraudulently  suppressed  by  some  of  the  inspectors.  The  testimony  of 
Cato  Carter,  a  Republican  inspector,  and  the  only  witness  to  the  point, 
settles  the  question,  and  clearly  explains  why  the  poll-list  was  not 
returned,  and  proves  that  there  was  no  intention  of  fraud.  (Carter,  pp. 
454, 455.)  Contestee  attempts  to  prove  that  three  colored  men  were  shut 
up  in  Hart's  gin-lot,  in  Lake  City,  on  the  day  of  election,  and  were  com- 
pelled to  vote  the  Democratic  ticket.  The  only  witness  produced  was 
this  same  Benj.  Jordan,  who  says  he  only  knew  one  of  the  men,  who 
told  him  he  was  compelled  to  vote  the  Democratic  ticket.  He  does  not 
know  for  whom  they  voted.  (Jordan,  950.)  But  as  Jordan  has  been  so 
fully  impeached,  it  Is  wholly  unnecessary  to  discuss  this  matter  further. 

Contestee  attempts  to  show  that  ten  persons  voted  at  said  precinct; 
■whose  names  were  not  on  the  registration-list.  Cato  Carter  is  the  wit- 
ness to  this  fact.  He  does  not  know  for  whom  they  voted,  nor  does  he 
prove  whether  they  took  the  oath  or  not.  (See  evidence  of  Carter, 
Record,  pp.  454,  455.)  Daugherty  swears  that  all  who  voted  at  this  pre- 
cinct whose  names  were  not  found  on  the  registration-list  took  the  oath; 
this  settles  the  question,  under  the  construction  of  the  law  and  evidence 
in  case  of  Alachua  County.     (See  evidence  of  Daugherty,  p.  141.) 

Precinct  Xo.  1. — Contestee  asks  that  30  votes  be  rejected  from  con- 
testant's vote  at  this  precinct,  on  the  ground  of  nonregistration,  non- 
residence,  intimidation,  and  fraud.  There  is  no  proof  of  non-residents 
voting,  nor  of  coercion,  intimidation,  nor  fraud  at  this  poll.  As  to  non- 
registered  voters.  A,  D.  Holland  swears  that  there  were  13  voters  who 
voted  and  whose  names  were  not  found  on  the  registration-list,  but  that 
they  all  took  the  required  oath.  Holland  was  a  Republican  inspector 
at  this  poll.  (See  evidence  of  Holland,  p.  451.)  And  seven  of  these  13 
were  examined,  and  they  all  swear  that  they  took  the  oath.  W.  M.  Ives 
says  that  he  administered  the  oath  to  all  whose  names  were  not  on  reg- 
istration list.     (See  evidence  of  Ives,  pp.  167,  168.) 

There  is  no  proof  of  intimidation  on  the  day  of  election.  But  contes- 
tee attempts  to  prove  that  Wm.  McNish,  Stephen  Thomas,  Joe  Sim- 
mons, Jas.  King,  and  Thomas  Boyd  were  arrested  on  the  road,  a  few 


fINLEY    VS.    BISBEE.  101 

miles  from  Lake  City,  on  the  ITtb  day  of  October,  1876,  by  Joel  Niblaek 
and  three  other  men,  and  were  compelled  by  their  captors  by  intimida- 
tion to  x)romise  to  vote  the  Democratic  ticket.  Thomas  and  Simmons 
say  that  their  lives  were,  threatened,  and  their  lives  were  spared  only 
on  condition  that  they  would  vote  the  Democratic  ticket.  But  Wm. 
McNish,  the  principal  witness,  i)roves  that  by  the  vote  of  the  entire 
capturing  party  these  five  i)ersons  were  spared  before  anything  was 
said  about  politics.     (McNish,  pp.  935,  936.) 

The  whole  trouble  seems  to  have  grown  up  in  regard  to  a  hog,  which 
Joseph  King  was  accused  of  stealing,  and  when  McNish  told  all  he  knew 
about  the  hog  Niblack  said  he  was  satisfied.  Boyd  says  that  McNish, 
being  frightened,  made  the  first  proposition  in  regard  to  voting,  and 
that  Niblack  told  them  several  times  afterward  that  he  did  not  hold 
them  responsible  for  their  votes,  and  that  he  voted  the  Democratic  ticket 
freely.  Boyd  says  that  the  promise  they  made  to  Niblack  was  that 
they  would  aid  and  assist  the  honest  people  in  putting  down  stealing, 
and  this  was  satisfactory.  The  charge  of  intimidation,  as  to  the  election, 
is  not  sustained  by  the  evidence. 

Your  committee  have  examined  the  evidence  very  carefully  in  regard 
to  the  other  allegations  and  facts,  and  conclude  that  the  vote  of  this 
county  should  be  counted  as  returned  by  the  precinct  officers  as  follows : 

Contestant 901 

Contestee 717 

DUVAL  COUNTY. 

Contestee  claims  in  his  answer  that  a  certain  number  of  votes  cast  in 
this  county  should  not  be  counted  because  they  were  cast  by  non-regis- 
tered jiersons  and  by  foreign- born  persons.  These  votes  will  have  to 
be  counted  under  the  rule  adopted  by  your  committee  in  regard  to  these 
classes  of  voters,  except  the  votes  of  6  foreigners  heretofore  mentioned, 
the  proof  as  to  these  voters  being  the  same  as  it  was  in  regard  to  those 
already  passed  upon.  The  contestee  also  asks,  as  to  this  county,  that 
ten  votes  be  deducted  from  the  vote  of  contestant,  because  they  were 
non-residents  and  minors.  To  sustain  his  averments  to  this  eflt'ect,  he 
proves  by  Philip  Walters  that  Aaron  Isaacs  and  William  Monroe,  who 
voted  for  contestee  at  West  precinct,  Jacksonville,  were  not  legal  voters 
for  the  reason  that  they  had  not  resided  in  the  State  and  county  the 
requisite  length  of  time.  (See  evidence  of  Walters,  Kecord,  539,'540.) 
Contestee  also  proves  that  Henr^'  Young  voted  at  Baldwin  precinct, 
and  that  he  voted  for  contestant,  when  he  had  not  been  a  resident  of  the 
county  six  months  immediately  preceding  the  election.  (See  evidence 
of  Howell,  Record,  p.  595;  Moore,  pp.  560,  561.) 

As  we  have  said  the  evidence  proves  that  these  persons  were  not  legal 
voters,  and  that  they  voted  for  contestant ;  they  must  therefore  be  de- 
ducted from  his  vote  in  this  county. 

Contestee  undertakes  to  i>rove  that  certain  devices  were  resorted  to  in 
this  county  by  certain  i)ersons  to  compel  persons  to  vote  the  Democratic 
ticket  by  numbering  tickets  which  they  gave  to  said  voters,  with  threats 
that  if  they  did  not  vote  the  Democratic  ticket  they  would  be  dis- 
charged by  their  employers,  &c.  There  is  nothing  in  the  answer  which 
will  justify  such  i)roof.  Tliere  is  no  allegation  in  the  answer  that  can 
under  any  rule  of  pleadiug  known  to  your  committee  be  construed  so 
as  to  admit  such  evidence.  We  are  disposed  to  extend  the  rule  in  this 
case  as  far  as  possible,  in  order  to  let  in  all  the  evidence,  but  when  there 
is  a  total  failure  to  plead,  as  is  the  case  here,  we  cannot  consider  the 


102  DIGEST    OF    ELECTION    CASES. 

evidence  in  determining  a  fact  wliich  tends  to  change  the  rote  of  either 
candidate.  Your  committee  will  say,  however,  that  the  proof  on  this 
point  wholly  fails  to  sustain  such  an  allegation  were  it  averred.  Thei)roof 
shows  that  some  tifteen  of  the  ballots  cast  w^re  numbered.  But  the 
evidence  does  not  show  that  the  voters  were  influenced  in  casting  their 
ballots,  by  this  tact,  or  that  they  in  some  instances  knew  of  it.  Your  com- 
mittee are  therefore  of  the  opinion  that  it  is  not  such  a  violation  of  the 
law  in  regard  to  the  secrecy  of  the  ballot  as  to  affect  the  election  We 
have  not  come  to  this  conclusion  without  giving  due  weight  to  the  se- 
crecy of  the  ballot.  The  object  of  the  adoption  of  the  ballot  was  to  afford 
the  voter  the  means  of  preserving  the  secrecy  of  his  vote,  and  to  enable 
him  to  vote  independently  and  freely  without  being  subject  to  be  over- 
awed, intimidated,  or  in  any  manner  controlled  by  others,  or  to  any  ill- 
will  or  persecution  on  account  of  his  vote.  The  secret  ballot  is  justly 
regarded  as  an  important  and  valuable  safeguard  for  the  ])rotection  of 
the  voter,  and  i>articularly  the  humble  citizen,  against  the  influence 
which  wealth  and  station  may  be  supi)osed  to  exercise.  (See  People 
vs.  Pease,  27  N.  Y..  81.) 

The  vote  of  this  county  should  be  counted  as  returned  by  the  precinct 
officers  after  deducting  the  three  (3)  votes  of  Aaron  Isaacs,  William 
Monroe,  and  Henry  Young,  and  the  (6)  foreign  votes  from  the  vote  of 
contestant.    The  vote  will  then  be  as  follows : 

Contestant 1,  459 

Contestee '2,  331 

HAMILTON  COUNTY. 

The  contestee  asks  that  the  returns  from  Jasper  precinct.  No.  2,  in 
Hamilton  County,  shall  be  rejected.  But  a  careful  examination  of  the 
testimony  for  both  the  contestee  and  contestant  will  show  conclusively 
that  while  there  may  have  been  some  irregularity,  there  was  no  fr.md, 
or  even  unfairness,  either  attempted  or  accomplished  at  this  precinct; 
but,  on  the  contrary,  the  proof  shows  that  everythiug  was  fair  and  honest 
both  in  the  conduct  of  the  election  and  in  the  canvass  of  the  vote  at  said 
precinct — both  political  parties  being  represented. 

The  contestee  has  also  attempted  to  show  that  Andrew  G.  Conuell, 
Gilbert  Oonnell,  Joseph  A.  Ellis,  and  Joel  Highsmith,  who  voted  in 
said  county,  had  not,  at  the  time  they  voted,  resided  in  the  State  the 
length  of  time  required  by  law,  and  that  J.  D.  Land  and  Benjamin  Bow- 
man, who  voted  in  said  count},  had  not  resided  there  six  months  at  the 
time  they  voted.  But  a  careful  and  impartial  consideration  of  the  tes- 
timony will  satisfactorily  establish  the  fact  that  all  the  above-named 
persons  had  all  the  requisites  of  citizenship  in  both  the  State  and  county 
to  entitle  them  to  vote. 

The  majority  of  the  committee  are,  therefore,  clearly  of  the  opinion 
that  the  returns  from  this  county  shouhl  be  counted  as  returned  by  the 
precinct  officers,  the  question  of  registration  having  been  heretofore 
settled.  The  following  is  the  true  v^ote  of  said  county  in  the  opinion  of 
your  committee: 

Contestant 6i4 

Contestee 329 

MADISON   COUNTY. 

In  regard  to  the  county  of  Madison  there  is  no  question  raised  by  th© 
•evidence  which  requires  any  special  notice.    The  vote  is  as  follows: 

Contestant 1.082 

Contestee 1,521 


FINLEY    VS     BISBEE.  103 

MARION   COUNTY. 

There  is^no  controversy  as  to  the  vote  of  this  coimty  to  be  determined 
by  the  committee.    The  vote  must  be  counted: 

Contestant   962 

Contestee 1,548 

NASSAU  COUNTY. 

The  coutestee  alleges  iu  his  answer  that  30  votes  were  cast  for  con- 
testant in  this  county  by  persons  who  were  intimidated  and  coerced  to 
vote  against  their  choice.  He  only  attempts  to  prove  16  such  votes, 
and  by  his  own  evidence  he  shows  that  12  of  the  16  voted  the  Republi- 
can ticket.     (See  Eecord,  410-415.) 

Of  the  other  4,  one  (Lonzo  Hunter)  swears  that  he  voted  the  Demo- 
cratic ticket  voluntarily.  Gilbert  Dorsy  is  the  only  one  who  swears 
that  he  voted  for  contestant,  while  the  remaining  two,  Columbus  Dorsy 
and  Lewis  Watson,  swear  that  they  do  not  know  for  whom  they  voted 
for  Congress.  (Record,  Gilbert  Dorsy,  409;  Columbus  Dorsy,  409; 
Lewis  Watson,  411 ;  Lonzo  Hunter,  412.)  So  that  the  fact  that  numbered 
tickets  were  given  out  to  some  colored  voters  and  resorted  to  as  proojF 
cannot  prevail,  especially  in  view  of  the  evidence  of  C.  W.  Yulee,  a  wit- 
ness for  the  contestee,  who  swears  that  manj'  of  the  tickets  were  given 
to  colored  men  who  were  members  of  the  Democratic  club,  who  of  their 
own  free  will  enrolled  their  names  as  such  members.  (Yulee,  Record, 
415,  416.) 

In  the  opinion  of  your  committee,  the  vote  of  this  county  should  also 
be  counted  as  returned  by  the  precinct  officers: 

Contestant 670 

Contestee 794 

ORANGE   COUNTY. 

There  is  no  question  raised  in  the  evidence  in  regard  to  this  county 
which  is  not  covered  by  the  question  of  registration  which  has  been 
passed  upon  b}  your  committee.  The  vote,  therefore,  must  be  counted, 
as  follows : 

Contestant 926 

Contestee 194 

PUTNAM  COUNTY. 

The  contestee  attempts  to  prove  that  one  Henry  Cannon  voted  in  this 
county  who  was  under  age. 

The  testimony  shows  that  one  Henry  A.  Cannon  voted,  but  does  not 
state  for  whom.  The  witness  Lyle  testifies  that  Henry  A.  Cannon  was 
on  the  poll-list  at  Palatka  iu  said  county,  but  that  he  only  knew  Henry 
Cannon,  and  did  not  know  any  one  by  the  name  of  Henry  A.  Cannon. 
(Lyle,  p.  435.) 

This  does  not  prove  that  Henry  Cannon  voted  at  Palatka,  or  for  whom, 
nor  is  it  proven  that  Henry  A.  Cannon,  whose  name  was  on  the  poll-list, 
was  under  twenty-one  years  of  age. 

It  is  contended  that  one  John  Smith,  who  voted  at  Palatka,  had  not 
resided  in  the  county  six  mouths  before  the  election. 

Smith  swears  that  he  went  to  Palatka  on  the  5th  day  of  May,  1S76, 
which  was  six  months  and  two  days  before  the  election ;  that  he  had 
before  that  time  left  Saint  John's  County,  where  he  had  resided,  taking 


104  DIGEST    OF    ELECTION    CASES. 

his  family  with  him,  and  before  fixing  on  a  permanent  place  of  abode 
he  left  his  family  at  Green  Cove  Spring,  in  Clay  County,  and  came  to 
Palatka,  with  the  intention  of  making  it  his  permanent  home,  and  made 
arrangements  to  go  into  business,  and  did  go  into  business  as  a  baker 
when  he  first  came  to  Palatka,  and  after  being  there  nearly  two  months 
he  removed  his  family  from  Green  Cove  to  Palatka.     (Smith,  p.  418.) 

In  the  opinion  of  the  committee  these  facts  made  Palatka  the  place  of 
his  permanent  abode  from  the  5th  of  May,  1876,  and  that  under  the 
constitution  and  laws  of  Florida  he  became  a  legal  voter  after  registra- 
tion. 

An  examination  of  the  testimony  of  Eoger  and  Teasdale  will  show 
that  they  do  not  disprove  the  statement  of  Smith. 

The  question  of  residence  and  domicile  is  a  question  largely  of  inten- 
tion (and  especially  as  Smith  swears  that  he  went  to  Palatka  with  the 
intention  of  remaining  there) ;  the  fact  that  he  registered  and  voted  there 
is  very  strong  evidence  of  his  intention  to  claim  his  domicile  there. — 
McCrary,  section  34. 

The  mere  statement  of  a  witness  that  a  voter  is  not  a  resident,  without 
giving  facts  to  justify  his  opinion,  is  not  suflBcient  to  throw  out  such  a 
vote;  and  after  a  vote  has  been  admitted,  something  more  is  required 
to  prove  it  illegal  than  to  throw  doubt  upon  it. — McCrary,  sections  371 
and  372. 

The  contestee  contends  that  one  William  H.  Lanagan,  who  voted  at 
Georgetown  precinct,  in  Putnam  County,  was  not  a  resident  of  the 
county. 

The  examination  of  the  testimony  of  Lyle,  Ramsaur,  and  Rosignal,  all 
witnesses  of  the  contestee,  will  show  that  Lanagan  had  not  changed  his 
permanent  abode  from  Putnam  County. — Lyle,  pp.  435,  436,  437;  Ram- 
saur, p.  438;  Rosignal,  pp.  439,  440. 

Lyle  says  he  does  not  know  that  Lanagan  left  the  county  without  the 
intention  of  returning. 

Ramsaur  says  that  he  left  in  search  of  employment,  leaving  his  child 
and  property  at  Palatka,  and  always  wrote  that  he  expected  to  come 
home. 

Rosignal  says  that  Lanagan  voted  at  Georgetown,  in  said  county;  that 
his  name  was  not  found  on  the  registration  list,  but  that  he  made  oath 
that  he  was  a  registered  voter  in  said  county,  and  voted. 

There  being  no  other  questions  in  regard  to  this  county,  except  the 
question  of  registration  and  the  one  as  to  foreign-born  voters,  the  vote 
must  be  counted  as  follows  : 

Contestant 617 

Contestee 579 

SUWANNEE   COUNTY. 

The  contestee  asks  that  7  votes  be  deducted  from  contestant's  vote  in 
this  county  on  the  ground  of  non-residence,  non-registration,  and  other 
disqualifications,  and  he  introduces  one  Thomas  H.  Harris  as  a  witness, 
who  states  that  he  knows  that  John  Williams's  name  did  not  appear  on 
the  registration-list,  and  that  he  believes  that  the  names  of  Wm.  L. 
Keller  and  S.  W.  Parnell  did  not  appear  on  said  list,  but  that  the  ordi- 
nary oath  taken  by  challenged  voters  was  taken  by  them. — R.  Harris, 
529. 

But  George  W.  Thralls,  a  United  States  supervisor  at  that  precinct, 
swears  that  there  were  two  forms  of  oath  administered. — Thralls,  pp. 
523-532. 

The  evidence  of  Thralls  as  to  the  age  of  Moses  Driver,  who  voted  at 


FINLEY    VS.    BISBEE.  105 

8aid  precinct,  is  wholly  insufficient  to  establish  the  fact  that  Driver  was 
under  age  when  he  voted. — Thralls,  Record,  p.  533. 

This  is  all  which  need  be  said  in  regard  to  this  county.  The  question 
as  to  foreign-born  and  non-registered  voters  under  the  evidence  cornea 
under  the  rule  heretofore  laid  down  by  the  committee.  The  vote  must 
be  counted  as  returned  by  precinct  officers: 

Coutestiiut 629 

Contestee 456 

SAINT  JOHN'S  COUNTY. 

There  is  but  one  question  involved  in  regard  to  the  vote  of  this  county 
which  has  not  heretofore  been  noticed,  and  that  is  in  regard  to  the  votes 
of  Pet<3r  Marken.  Frank  B.  Genovar,  and  Nester  Genovar.  It  is  claimed 
that  these  voters  were  non-residents  of  said  county.  But  we  think  a 
careful  examination  of  the  evidence  clearly  shows  that  they  were  all 
residents  of  said  county  and  had  been  the  requisite  length  of  time.  See 
their  evidence.  Record,  pp.  496-499.  The  vote  of  this  county  should  be 
counted  as  returned  by  the  precinct  officers: 

Contestant 50& 

Cont^stee 331 

VOLUSIA  COUNTY. 

The  only  question  arising  in  this  county  which  we  need  here  notice 
is  the  question  in  regard  to  the  vote  of  Henry  Clay.  Contestee  offered 
evidence  to  show  that  Clay  voted  for  contestant  under  intimidation. 
But  your  committee  think  it  is  altogether  insufficient  to  establish  the 
fact.  The  testimony  of  Fitts,  the  only  witness  examined  by  contestee, 
does  not  make  out  a  case  of  coercive  voting;  if  even  it  did,  standing 
alone,  it  is  overwhelmingly  contradicted  by  tlie  evidence  of  three  cred- 
ible witnesses,  two  of  whom  were  officers  of  the  election  at  the  precinct 
where  said  Clay  voted.  Fitts,  Record,  525- C-'T.  See  evidence  of  Chand- 
ler, 172;  Brown.  173;  Oduno,  174. 

Therefore  the  vote  of  this  county  should  be  counted  according  to  the 
returns  of  the  precinct  officers,  as  follows : 

Contestant 474 

Contestee 172 

Your  committee  has  now  completed  the  investigation,  and  find  the 
following  to  be  the  true  vote,  by  counties,  of  the  contestant  and  con- 
testee : 


Counties. 

Finley. 

Bisbee. 

Alacbna ....... . ... ».. 



1,112 

238 
111 
706 
315 
901 

1,459 

5 

614 

1,082 
962 
670 
926 
617 
629 
508 
474 

1,S7» 

Baker ....                     

143 

Brevard 

56 

Bradford .                 ..                            

199 

Clay 

126 

Columbia .       .          .            

717 

Daval .              

2,331 

Dade 

8 

Hamilton 

329 

Madison 

1,521 

Marion .   . .            

1,548 

NMsaa 

794 

Orange •. .               

194 

Pntnam .              

579 

Sawannee 

456 

St.  John's 

331 

Volusia , 

172 

Total  vote  of  each 

11,329 
252 

11,077 

Msgority  for 

106 


DIGEST    OF    ELECTION    CASES 


This  conclusion  lias  been  readied  through  as  careful  an  examination 
of  the  evidence  and  the  law  applicable  thereto  as  your  coinniittee  was 
able  to  make.  This  result  was  arrived  at,  as  has  been  heretofore  shown, 
by  excluding  from  the  count  Archer  jireoinct,  No.  2,  in  Alachua  County, 
and  by  counting  the  rest  of  the  vote  of  the  district  as  returned  by  the 
precinct  officers,  after  deducting  therefrom  such  votes  as  in  the  oi)iiiion 
of  your  committee  were  illegal. 

Your  committee  desire  to  add  that  the  evidence  in  this  case  shows 
"that  no  unfairness,  dishonesty,  or  fraud  iu  the  conducting  of  the  elec- 
tion at  any  of  the  precincts  in  the  entire  Congressional  district  was 
attempted  or  committed,  except  at  Archer  precinct,  No.  2,  in  Alachua 
County. 

Your  committee,  therefore,  recommend  the  adoption  of  the  following 
resolutions : 

Resolved^  That  Horatio  Bisbee,  jr.,  is  not  entitled  to  a  seat  in  this 
House  as  a  Representative  in  the  Forty-fifth  Congress  from  the  second 
■Congressional  district  of  Florida. 

Resolved,  That  Jesse  J.  Finley  is  entitled  to  a  seat  in  this  House  as  a 
Eepreseutative  in  the  Forty-fifth  Congress  from  the  second  Congres^ 
sional  district  of  Florida. 

THOMAS.  R.  COBB. 
JOHN  T.  HARRIS. 
MILTON  A.  CANDLER. 
E.  JOHN  ELLIS. 
WILLIAM  M.  SPRINGER. 
JERE  N.  WILLIAMS. 


February  5, 1879. 


-Mr.  Price,  from  the  Committee  on  Elections,  sub- 
mitted the  following 


VIEWS    OF    THE    MINORITY: 

There  has  been  two  counts  by  the  State  board  of  canvassers  in  Flor- 
ida; the  first  giving  Mr.  Bisbee  a  majority  in  this  district  of  141  votes; 
the  second,  made  under  a  mandate  of  the  supreme  court  of  that  State, 
gave  Bisbee  an  increased  majority;  but  contestant  insists  that  iu  each 
count  certain  precincts  were  improperly  rejected  and  others  improperly 
counted.  The  committee  have,  therefore,  preferred  to  start  into  this 
investigation,  taking  the  entire  votes  cast  in  all  the  jirecincts  and  coun- 
ties of  this  Congressional  district  as  a  basis  of  their  investigation, 
whether  the  same  were  improperly  counted  or  rejected  by  the  State  or 
county  canvassing  boards,  and  then  make  such  deductions  from  or  addi- 
tions to  the  vote  of  contestant  or  contestee  as  the  law  and  evidence 
■demand. 

The  following  table  shows  the  entire  vote  cast  in  the  district,  can- 
vassed and  not  canvassed : 


Counties. 


Whole  No. 
of  Totes. 


For  Fin-    For  Bis- 
ley.  bee. 


Madison 2,60.3 

Suwannee j  1,  085 

Hamilton 1  943 

•Columbia 1,  618 

Alachua i  3.242 


1,082 
629 
614 
901 

1,  25.5 


1,  .521 
456. 
329 

717 
1.972 


FINLEY    VS.    BISBEE. 


107 


Coantins. 

Whole  No. 
of  votes. 

Kor  Fin- 
loy. 

For  BIs- 
bee. 

Bradford   

906 

381 
1,464 
3,803 

706 

238 

670 

1,468 

199 

Baker 

143 

794 

Duval           .        .  .          

2,331 

Saint  John -• - 

839 
1,196 

508 
617 

331 
579 

Marion 

2,510  1            962 
646  1            474 

1,120               926 

167  1            111 

13  1                5 

441  1            315 

1,548 

Yolusia 

172 
194 

56 

Dade 

8 

Clay 

126 

4-' 

22,  957 

11,481 

11,476 

Finlpy's  raajority 


See  printed  record,  pp.  179  to  204. 

Contestant  aiiuiit.s  that  some  illeg  il  votes  were  cast  for  him,  which 
ought  to  be  deducted  from  the  abov^e  statement  of  the  vote. 

Contestee  insists  that  said  illegal  votes  amount  to  several  hunJred. 
They  each  insist  that  precincts  included  in  the  above  table  have  been 
counted  which  should  be  rejected,  and  neither  contestant  nor  contestee 
admits  that  this  table  shows  the  true  vote  cast  at  this  election.  Hence 
it  becomes  necessary  to  take  up  the  questions  presented  and  to  decide 
them,  in  order  to  ascei^tain  who  is  entitled  to  the  seat  from  this  district. 

Contestant  rests  his  case  on  two  questions : 

First.  Tluit  tht3  vote  at  Archer  precinct, i)oll  No.  2,  in  Alachua  County, 
must  be  rejected  on  account  of  gross  frauds  committed  by  the  election 
officers. 

Second.  That  the  vote  of  two  precincts  in  Baker  County  and  the  vote 
of  Clay  County,  which  were  not  counted  by  the  State  board  of  canvassers 
in  the  second  canvass  (but  are  inlcuded  in  the  above  table),  shall  be 
counted  because  they  were  rejected  without  sufficient  cause. 

ARCHER  PRECINCT,  POLL  NO.  2,  ALACHUA  COUNTY. 

Archer  i)recinct,  in  Alacliua  County,  just  prior  to  this  election,  was 
provided  with  two  polling  places  to  give  ample  facilities  for  voting.  They 
are  called  Archer  No.  1  and  No.  2,  and  were  located  in  the  village  of 
Archer,  in  the  same  building,  in  opposite  ends  of  an  old  storehouse.  The 
votes  returned  from  these  polls  are  as  follows: 

Biabee.        Finloy. 

Poll  No.  I .54  98 

Poll  No.  2 399  141 

Total. 453  239 

The  contestant  makes  no  objection  to  jmll  No.  1,  and  there  is  no  proof 
in  the  record  whicli  attacks  the  return  from  that  poll;  but  contestant 
insists  that  the  officers  of  the  election  at  poll  No.  2  were  guilty  of  gross 
fraud  in  the  manner  of  onducting  the  election,  and  made  out  and  re- 
turned a  false  and  forged  return  showing  more  votes  for  contestee  than 
were  cast  for  him. 

A  large  volume  of  testimony  in  regard  to  the  frauds,  forgery  of  the 
names  of  part  of  the  officers  to  the  returns,  and  gross  irregularities  and 


108  DIGEST    OP    ELECTION    CASE8. 

disregard  of  the  law,  is  to  be  found  iu  the  record  of  tbis  case.  In  fact, 
both  contestant  and  contestee  agree  that  gross  fraud  was  committed, 
disagreeing  only  as  to  who  profited  thereby.  It  is  therefore  unnecessary 
to  quote  the  evidence  on  this  point  except  so  far  as  it  bears  upon  other 
questions.  It  will  be  seen  that  the  returns  show  541  votes  polled  for 
Kepresentative  in  Congress  at  this  poll.  Contestant  insists  that  the 
return  is  false  because  at  the  close  of  the  count  of  the  vote  it  was  pub- 
licly announced  that  Drew,  the  Democratic  candidate  for  governor,  had 
received  136  votes,  and  Stearns,  Republican  candidate,  180  votes,  and 
that  the  vote  for  the  other  candidates  differed  very  little  from  the  vote 
for  governor. 

There  is  a  conflict  in  the  evidence  as  to  who  made  this  announcement, 
and  whether  it  was  made  before  or  after  all  the  ballots  had  been  can- 
vassed. Also,  whether  the  vote  cast  for  governor  only  was  announced. 
Some  of  the  witnesses  swear  that  the  vote  cast  for  other  candidates  was 
also  announced,  including  the  vote  for  Congress  We  think  the  weight 
of  proof  is  that  either  Black,  one  of  the  inspectors,  or  Vance,  the  clerk, 
did,  about  the  close  of  the  canvass,  announce  the  vote  for  governor  as 
136  for  Drew,  180  for  Stearns.  And  also  stated  that  the  vote  for  the 
other  candidates  differed  little  from  the  vote  for  governor.  Much  stress 
is  laid  on  this  announcement  in  argument,  but  there  is  no  law  in  Florida 
requiring  any  announcement  of  the  vote  to  be  made  by  any  one.  And 
the  announcement  (an  unofficial  act)  having  been  made  by  Black  or 
Vance,  who,  it  is  insisted  by  contestant,  were  corrupt  and  committed 
both  perjury  and  forgery,  while  acting  in  the  official  capacity  of  officers 
of  the  election  at  this  poll,  it  would  seem  that  little  importance  or 
weight  should  be  given  to  an  announcement  made  by  them.  Tucker,  a 
witness  for  contestant,  swears  that  about  the  time  the  announcement  of 
the  vote  was  made  he  took,  from  a  tally-sheet  kept  by  Vance,  the  vote 
according  to  the  tallies,  and  that  this  tally-sheet  showed  141  votes  for 
Finley,  180  for  Bisbee.  Both  Black  and  Vance  are  examined,  and  swear 
that  this  statement  of  the  vote  is  untrue;  that  they  alone  (;ounted  the 
vote,  and  the  result  was  141  for  Finley,  399  for  Bisbee.  (xreen  R.  Moore 
and  Floyd  Dukes  are  shown  by  the  evidence  to  have  done  nothing  in 
canvassing  the  vote,  except  to  string  the  ballots  and  put  them  back  in 
the  box.  Contestant  also  shows  that  Vance  and  Black  returned  the 
ballot-box  to  the  clerk  of  the  circuit  court,  claiming  that  they  had  re- 
turned the  ballots  as  cast  at  that  i)oll. 

Moore  also  swears  that  there  were  but  277  ballots  canvassed  ;  that 
there  were  only  318  names  on  the  poll  list;  and  the  result  announced 
was  made  up  from  the  poll-list.  At  the  county  canvass,  afterward,  at 
the  clerk's  office  in  Gainesville,  the  box  was  opened  and  only  277  ballots 
were  found  in  the  box.  The  laws  of  Florida  make  no  i>rovisioTi  for  pres- 
ervation of  ballots  after  they  have  been  canvassed  at  the  polls.  Con- 
testant also  proves  by  Samuel  T.  Fleming,  a  Democrat,  that  he  was  at 
poll  No.  2  during  the  entire  day,  except  during  the  adjimrnment  for  din- 
ner; that  he  occupied  a  favorable  position  to  see  the  voting  and  voters  ; 
and  that  he  took  down  on  slips  of  paper  the  names  of  all  persons  who 
voted  at  that  i)oll  from  the  outside  of  the  building.  And  he  makes,  as 
an  exhibit  to  his  deposition,  a  list  of  names  which  he  says  is  a  copy  of  a 
list  kept  by  him  there  that  day.  He  says  that  he  is  a  merchant  at 
Archer,  and  well  acquainted  with  nearly  all  who  voted.  The  list  ac- 
companying Fleming's  deposition  contains  305  names. 

He  testifies  that  all  these  voters  were  c>lore<l  exce  )t  15;  he  gives  the 
names  of  the  white  voters  on  his  list.  There  is  a  conflict  in  the  evidence 
as  to  how  long  Fleming  was  absent  from  the  palls,  and  whether  absent 


FINLEY    VS.    BISBEE.  109 

more  thau  once  «iuring  the  day,  and  whether  voting  did  or  did  not  con- 
tinue during  his  absence.  We  deem  it  unnecessary  to  attempt  to  recon- 
cile the  testimony  on  this  point,  as  it  is  clearly  shown  that  persons  voted  at 
that  i)oll  at  that  election  from  the  "outside  of  the  building"  whosenames 
are  not  on  Fleming's  list.  The  proof  clearly  shows  that  the  tirst  person 
who  voted  was  Frank  Danzy,  a  well-known  colored  jneacher  in  that  lo- 
cality; that  they  all  stood  back  and  called  him  to  come  forward  and  vote 
first,  "  for  luck,"  and  he  did  so,  yet  his  name  is  not  on  Fjeming's  list. 
From  this  it  is  evi<lent  Fleming  was  not  present  when  the  voting  com- 
menced. Moreover,  17  other  persons  are  called  who  swear  they  voted  at 
that  poll  on  tiiatday  from  "the  outside  of  the  building."  They  were 
sharply  cross  examined  as  to  their  residence,  &c.;  they  are  not  contra- 
dicted and  no  attempt  is  made  to  do  so.  How  many  votes  were  cist 
from  the  inside  of  the  building  is  notclearly  shown,  but  it  is  shown  that 
the  number  was  not  large. 

This  is  contestant's  case  as  to  Archer,  Xo.  2,  and  he  asks  that  the  re- 
turns be  set  aside  for  the  reasons  stated. 

Contestee  admits  that  the  returns  do  not  show  the  true  vote  as  cast. 
He  insists  that  the  ballot-box  was  tampered  with  before  the  count  was 
made,  and  that  Democratic  tickets  were  put  in  and  Republican  tickets 
taken  from  the  box.  He  proves  by  Black  and  Vance  that  they  made  the 
count,  and  that  the  return  they  made  was  a  true  return  of  the  ballots 
found  in  the  box.  Black  testifies  that  he  has  been  a  resident  for  several 
years  at  Archer,  and  is  acquainted  with  the  people  in  that  vicinity,  and 
that  he  does  not  remember  over  ten  Democrats  who  voted  that  day  at 
poll  2,  and  was  suri)rised  to  find  so  many  Democratic  ballots  in  the 
box. 

He  testifies  he  was  offered  a  bribe  by  one  Dr.  Carew,  a  leading  Dem- 
ocrat at  Archer,  to  swear  that  the  true  vote  cast  at  poll  2  was,  for  Finley, 
141 ;  Bisbee,  180.     Oarew  is  not  called  to  contradict  this  statement. 

Montgomery,  the  Republican  candidate  for  lieutenant-governor,  testi- 
fies that  he  received  information  from  a  friend,  who  was  a  Democrat,  that 
some  Democrats  at  Archer  intended  to  have  the  ballot-box  at  Archer 
tampered  with,  and  that  Green  R.  Moore  was  relied  on  to  do  that  thing. 

Montgomery  tried  to  prevent  Moore's  appointment  as  an  officer  to  hold 
that  election.  Strict  rules  of  evidence  would  perhaps  exclude  this  tes- 
timony as  hearsay,  but  this  information  seemed  to  be  in  accord  with  sub- 
sequent developments. 

The  sitting  member  also  introduces  testimony  to  show  that  Archer 
precinct  is  and  has  been  a  large  Republican  ])recinct.  Witnesses  state 
that  in  1872  the  Republican  vote  was  about  200,  the  Democratic  vote  40. 
In  1874,  the  Republican  vote  about  300,  the  Democratic  vote  about  30. 
The  record  and  report  in  Finley  vs.  Walls,  Forty-fourth  Congress  (at  the 
election  held  in  the  fall  of  1874  at  Archer),  was  Republican  293,  Demo- 
cratic 25,  giving  a  Rei)ublican  majority  of  268.  It  will  be  seen  accord- 
ing to  the  returns  that  the  Democratic  vote  increased  from  1874  to  1876 
nearly  nine  hundred  per  cent.,  while  the  Republican  vote  increased  a  lit- 
tle more  than  fifty  per  cent.  No  proof  has  been  offered  to  explain  this 
extraordinary  increase  of  t'he  Democratic  vote  at  this  poll.  The  other 
precincts  in  this  county  show  no  material  change  in  the  vote  of  1874 
and  1876,  while  this  precinct  shows  a  Democratic  increase  of  nine  hun- 
dred per  cent.  This,  contestee  insists,  is  conclusive  of  fraud,  taken  in 
connection  with  the  absence  of  any  proof  explaining  it;  and  the  further 
fact  that  Fleming,  contestant's  own  witness,  swears  that  during  the 
recess  for  dinner  he  saw  the  ballot-box  in  the  possession  of  two  men 
named  Washington  and  Edge,  one  a  Republican,  tie  other  a  Democrat. 


110  DIGEST    OF    ELECTION    CASES. 

Mr.  Fleming's  testimony  on  this  point : 

Q.  Who  had  charge  of  the  ballot-box  during  the  dinner  adjournment  f — A.  Mr. 
Edge  and  Mr.  Washington.  They  were  not  inspectors,  but  were  selected,  one  of  them 
a  Democrat,  the  other  a  Kepnblicau,  to  watch  the  box,  and  they  stood  up  there  and 
watched  the  box  during  that  time,  which  was  in  public  view. 

Fleming  testifies  that  he  went  to  dinner ;  therefore  he  could  not  know 
what  was  done  with  the  box  in  his  absence. 

Contestee,  in  explanation  of  the  fact  that  the  Republican  vote  in  the 
precinct  had  slightly  increased  between  1874  and  J  876,  proves  that  a 
very  considerable  number  of  colored  voters  had  come  into  the  district 
because  of  the  establishment  of  new  sawmills,  turpentine  distilleries, 
and  the  opening  up  of  turpentine  orchards.  Otiiers  have  taken  up 
homesteads  from  some  public  lands  lying  in  the  precinct.  The  evidence 
shows  that  some 400  colored  Republicans  wereorganizevl  into  Republican 
clubs  at  Archer  and  vicinity,  that  they  were  directed  to  and  did  vote  at 
Archer,  and  that  other  Republicans  not  belonging  to  clubs  also  voted 
there. 

The  conclusion  the  committee  have  come  to  is  that  the  officers  of  the 
election,  or  some  of  them,  were  guilty  of  gross  fraud,  and  a  reckless  dis- 
regard of  the  law,  in  conducting  the  election,  the  canvassing  of  the  votes, 
and  making  returns.  This  is  more  readily  believed  when  it  is  shown 
in  the  proof  that  some  of  them  have  made  contradictory  statements  of 
important  facts  connected  with  the  canvass,  count,  and  result  of  this 
election.  Green  R.  Moore  is  shown  to  have  made  contradictory  affida- 
vits— one  stating  that  the  vote  polled  was  truly  returned  ;  another  that 
the  return  was  false  and  fraudulent,  and  signed  in  blank.  Floyd  Dukes, 
another  inspector,  also  figures  in  two  contra<lictory  atfidavits,  but  there 
is  some  doubt,  from  the  testimony,  whether  he  was  actually  sworn  to 
one  of  them.  The  character  of  Black,  another  inspector,  is  jtroven  to  be 
bad.  They  are  all  sworn  in  this  case,  contradict  eacli  other,  and  it  is  evi- 
dent that  some  of  them  have  sworn  falsely.  Under  tlu*se  circumstances 
we  feel  compelled  to  reject  the  returns  from  this  ik)11  as  wholly  unrelia- 
ble and  worthless  to  establish  the  true  vote  cast  at  that  poll. 

But  the  proof  shows  that  an  election  was  opened  and  held  at  a  time 
and  place  established  by  law  by  officers  legally  appointed  to  hohl  an 
election  at  Archer  poll,  No.  2,  and  that  many  legal  voters  were  there, 
and  voted.  In  such  cases  we  find  that  we  are  remitted  to  such  other 
evidence  as  may  appear  in  the  record  to  ascertain  the  vote  for  contest- 
ant and  contestee.     We  cite  the  following  authorities  on  this  point: 

When  a  return  is  rejected  legal  votes  are  not  lost;  they  may  be  proven  by  second- 
ary evidence,  and  when  thus  proven  may  be  counted.  (McCrary'e  Law  of  Elections, 
section  304.)  In  which  case  each  candidate  must  prove,  by  calling  the  voters  as  wit- 
nesses or  otherwise,  the  number  of  votes  received  by  him.     {Ibid.,  section  :{91.) 

This  rule  was  adopted,  and  the  testimony  of  the  voters  held  conclu- 
sive, in  the  following  cases:  Ree«l  vs.  Julian,  2d  Bartlett,  823,  828,  832; 
Washburn  v«.  Voorhees,  tdewi,  54,00,  02,  and  04;  Lloyd  vs.  Newton, 
Clark's  &  Hall's  R.,  520;  Vallandigham  vs.  Campbell  (1858),  1st  Bart- 
lett, 223,  22 S,  229,  an<l  230.  See  also  report  of  Mr.  Lamar,  which  was 
adopted  by  the  House.     Reed  vs.  Kneas,  Brightly,  360,  371,  372. 

In  the  case  of  The  People  ex  rel.  Judson  vs.  Thatcher,  reported  in  7th 
Lansing  N.  Y.  Reports,  the  court  held  that  the  testimony  of  the  voters 
was  higher  evidence  than  the  returns,     (pp.  280,  281,  282,  and  280.) 

In  the  case  of  Washburn  rs.  Voorhees,  Haudlton  Township  was  re- 
turned voting  as  follows :  Washburn,  143;  Voorhees,  498.  Washburn 
called  the  voters  themselves  and  showed  that  twenty-seven  more  votes 


FLNLEY    VS.    BISBEE.  lU 

were  cast  for  bim  than  were  returned  ;  tbe  returns  were  set  aside,  and 
the  evidence  of  tbe  voters  taken  establisbing  l)is  vote.  Mr.  Voorbees, 
wbo  received  according  to  tbe  returns  498  votes,  made  no  effort  to  es- 
tablish bis  vote.  Tbe  evidence  incidentally  showed  that  four  persons 
voted  for  him ;  these  only  were  counted  for  him.  The  committee,  ia 
citing  the  authorities  upon  which  they  base  their  decision,  say: 

But  tbe  rejection  of  a  return  does  not  necessarily  leave  the  votes  actually  cast  at  a 
precinct  uncounted.  It  only  declares  that  the  return  having  been  shown  to  be  false 
shall  not  he  taken  as  true,  and  the  parties  are  thrown  back  upon  such  other  evidence 
as  is  in  their  power  to  show  how  many  voted  and  for  whom.  So  that  the  entire  vote, 
if  sufficient  care  be  taken  and  the  means  are  at  hand,  may  be  showu,  and  not  a  single 
one  lost  notwithstanding  the  return  is  rejected.  It  is  found,  as  has  already  been  stated, 
that  170  votes  were  cast  at  this  precinct  for  Mr.  Washburn.  There  was  also  the  testi- 
mony of  four  persons  that  they  voted  for  Mr.  Voorhees. 

In  Eeul  vs.  Kneass,  584,  Brightly's  L.  Oases,  366,  372,  the  court,  in 
answering  an  objection  urged  to  testimony  of  voter,  said  : 

Let  the  doctrine  be  ouce  established  as  constitutional  law  that  an  elector  cannot 
be  heard  in  such  a  case  to  prove  how  he  voted,  in  order  to  establish  the  falsity  of  an 
election  return,  and  the  suffrage  of  everv  man  in  the  country  is  placed  under  the  con- 
trol of  the  election  othcers,  who  may  make  hiui  appear  to  have  voted  exactly  as  they 
please.  According  to  this  doctrine,  if  tive  out  of  six  hundred  voters  in  a  given  dis- 
trict should  vote  for  one  canditlate,  and  their  vrttes  should  all  be  returned  as  given 
to  another,  no  adequate  means  exist  in  any  body,  legislative  or  judicial,  in  the  com- 
monwealth, to  relief  against  so  cri^  iug  a  wrong ;  for  lefusing  to  hear  the  testimony  of 
electors  to  prove  how  they  voted,  the  establishment  of  fraud,  in  such  a  case,  would 
be  impossible.     (Brightly's  L.  Cases,  371,  372.) 

In  Vallajidigham  vs.  Campbell  (18.58)  there  were  three  reports,  and 
the  report  submitted  bv  Lamar,  and  signed  bv  four  members,  teas  finally 
adopted  by  the  Hoitse.—{Ut  Baitlett  K.,  223,  228,  229,  230.) 

In  this  report  of  Lamar's  there  is  an  elaborate  review  of  all  the  au- 
thorities, English  and  American,  upon  the  questions  of  the  admissibility 
of  the  declarations  and  testimony  of  voters  as  to  their  qualifications, 
and  for  which  candidate  they  voted. — Id.,  230. 

This  report  says : 

The  adyniafibility  of  evidence,  consisting  of  the  dtclaration  of  roterx,  as  to  any  mattets  con- 
cerning ihtir  own  voting,  has  been  settUd  in  the  British  rarliament  repeatedly  and  vniformly 
for  over  one  hundred  years,  and  is  no  longer  to  be  questioned. — Id.,  230. 

The  point  was  expressly  and  deliberately  decided  in  the  great  New  Jersey  case  in 
1840,  usually  known  as  the  B>oad  Seal  case,  aud  the  evidence  was  unanimously  re- 
ceived, and  a  large  number  of  votes  determined  upon  it.  This  pre&dent  has  been  gen- 
erally approved  ever  since,  and  the  undersigned  attaches  more  importance  to  it  than  usual, 
because  it  wwi  unanimous  in  a  highly  partisan  case,  and  because  of  the  great  ability  and  dis- 
tinction of  the  gentlemen  who  componed  the  commiliee. — Id.,  2;U. 

As  to  a  number  of  voters  whose  declarations  are  given  in  evidence,  it  appears  upon 
the  paper  and  testimony  that  their  attendance  as  witnesses  could  not  be  procured, 
but  it  is  not  nectusary  in  suih  cases  to  first  call  the  voter  and  see  if  he  will  claim  his  pricilege 
of  refusing  to  ansicer. — Id.,  231. 

The  authorities  above  cited  fully  sustain  this  principle,  and  show  sev- 
eral cases  where  it  has  been  acted  upon  both  by  Congress  and  the  courts 
of  the  country. 

Coutestee  in  this  case  has  called  298  voters,  who  swear  that  they  voted 
for  him  at  Archer  Xo.  2  at  this  election.  Witnesses  also  prove  that  10 
others,  whose  nantes  they  give,  and  who  are  dead  or  removed  from  the 
county  since  the  election,  also  voted  for  bim  at  this  poll.  Moore,  one  of 
the  inspectors,  proves  tliat  two  others  voted  for  contestee,  but  Moore  is 
not  corroboratetl  oti  this  i)oiiit,  without  which  we  regard  his  evidence 
as  of  li'  tie  value.  Contestee  shows  by  tbe.se  voters  that  they  were  regu- 
larly organized  into  Kepublican  clubs  in  that  precinct ;  that  tbe  officers 
of  their  clubs  distributed  to  them  their  tickets ;  fifty -four  of  them  can 


112  DIGEST  OF  ELECTION  CASES. 

and  did  read  or  spell  out  the  names  on  their  tickets ;  they  all  swear  they 
voted  the  straight  Republican  ticket.     All  of  them  when  asked  (which 
was  a  large  majority  of  them)  also  swear  from  whom  they  received  their 
tickets,  giving  the  names  of  the  leading  Republicans  of  the  district,  who 
were  the  officers  of  the  Republican  clubs.     These  men  who  distributed 
the  tickets,  and  who  could  read  and  write,  were  called,  and  testified  that 
they  did  distribute  tickets,  and  none  but  Republican  tickets,  to  the 
members  of  their  clubs  (one  of  them  the  night  before  the  election,  the 
remainder  of  the  day  on  the  election),  having  been  assigned  to  the  duty 
of  seeing  that  all  Republicans  who  could  not  read  were  furnished  with 
straight  Republican  tickets.    It  is  proved  by  the  voters  themselves  that 
they  voted  the  identical  tickets  they  received  from  the  officers  of  their 
clubs,  and  they  distributed  none  but  straight  Republican  tickets.     Ex- 
hibits of  the  ticket  distributed  and  voted  are  made  in  the  record,  and 
show  that  the  ticket  included  •'  For  Congress,  Horatio  Bisbee,  jr."   Those 
who  could  read  swear  that  Bisbee's  name  was  on  their  ticket.     Some 
of  the  voters  who  could  not  read  recognized  the  straight  Rei)ublican 
ticket  they  voted,  by  reason  of  the  manner  in  which  a  flag  was  i)!aced 
at  the  head  of  a  ticket.    The  Democratic  ticket  is  shown  to  have  had  a 
different  flag.     There  is  no  evidence  in  the  record  showing  that  any 
ticket  except  the  straight  Republican  and  straight  Democratic  tickets 
were  in  circulation  or  voted  at  that  poll  during  the  day,  and  no  effort  is 
shown  in  the  proof  to  have  been  made  to  distribute  Democratic  tickets 
among  these  colored  voters.     The  absence  of  such  testimony  we  regard 
as  an  important  fact  in  the  case.     If  Democratic  tickets  had  been  dis- 
tributed among  these  voters  at  poll  No.  2,  contestant  could  easily  have 
shown  it ;  as  he  has  not  attempted  to  do  so  when  his  whole  case  rested 
on  this  poll,  it  must  be  presumed  he  could  not.     And  surely,  in  the  ab- 
sence of  all  proof  of  this  character,  it  cannot  be  denied  that  contestee  is 
entitled  to  308  votes  which  the  voters  themselves  and  corroborating 
testimony  prove  were  cast  for  him.     Now,  contestant  nuikes  no  effort  to 
prove  his  vote  in  like  manner,  nor  does  he  attempt  to  account  for  the 
extraordinary  increase  of  the  Democratic  vote  returned  and  claimed  at 
this  precinct.    He  puts  Fleming's  list  in  evidence,  and  admits  the  per- 
sons whose  names  are  on  the  list  voted  at  that  poll  at  that  election. 
Mr.  Bisbee,  having  this  list  before  him  (the  poll-book  at  this  precinct 
was  lost  or  mislaid),  called  283  voters  on  Fleming's  list,  who  swear  they, 
together  with  eight  others  on  this  list,  voted  the  full  straight  Republi- 
can ticket,  including  for  Congress  Mr.  Bisbee.    This  would  leave  Mr. 
Finley  14  votes  had  he  called  the  remainder  of  Fleming's  list,  and  they 
had  sworn  they  voted  for  him.    The  testimony  does  not  show  that  there 
was  but  one  Democrat  among  all  the  colored  voters  at  this  precinct,  and 
he  was  appointed  inspector  at  this  poll.    This  clearly  shows  that  the  an- 
nouncement made  at  the  close  of  the  poll,  that  Mr.  Finley  received  141 
votes,  Mr.  Bisbee  180,  is  not  true. 

But  contestant  insists  that,  as  witness  Tucker  looked  over  the  tally- 
sheet  which  Vance  kept,  and  found  from  it  that  the  vote  for  him  was 
141,  and  for  Mr.  Bisbee  180,  that  he  can  and  does  rely  on  this  proof  to 
show  that  he  received  14i  votes. 

This  position  we  regard  as  wholly  untenable.  Contestant  himself 
attacks  Vance  and  Black  ;  charges  and  insists  he  has  proven  that  they 
are  not  only  capable  of  committing  fraud  and  forgery,  but  were  actually 
guilty  of  these  crimes  as  officers  at  that  election,  and  were  also  guilty  of 
perjury  in  making  a  false  return  an<l  testing  of  the  vote.  Contestant, 
by  his  proof,  aided  by  the  proof  of  contestee,  has  convinced  this  commit- 
tee that  the  official  acts  of  the  officers  of  this  election,  Vance  included, 


FINLEY    VS.    BISBEE.  113 

are  unreliable,  that  gross  fraud  was  committed,  and  the  returns  hare 
been  thrown  out  as  contestant  insisted  should  be  done.  How,  then,  can 
the  connnittee  go  back  and  take  a  tally-sheet  kept  by  Vance  and  regard  it 
as  ev  idence  to  show  the  number  of  votes  received  by  contestant  f  Tucker, 
who  says  he  took  the  figures  from  the  tally-sheet,  does  not  and  cannot 
swear  that  the  tally-sheet  was  correctly  kei)t.  Vance,  who  did  keep  it, 
swears  that  no  such  count  was  kept,  and  if  it  had  been  so  kept  would 
have  been  false.  If  such  figures  were  found  on  the  tally-sheet  it  is  evi- 
dent from  the  other  testimony  in  this  case  that  they  were  untrue.  Tucker 
represents  that  the  tally-sheet  showed  that  Mr.  Bisbee  received  180  votes. 
Yet  Mr.  Bisbee  has  shown  that  he  received  at  least  308  votes,  which  is 
128  votes  more  than  the  tally-sheet  gave  him. 

This  is  leaving  out  altogether  contestee's  theory  that  the  ballot-box 
was  stuffed  before  the  count  commenced.  We  cannot  say  that  the  oflB- 
cers  of  an  election  were  false  to  their  trust — guilty  of  gross  frauds — and 
for  that  reason  reject  their  returns,  and  at  the  same  time  say  that  the 
vote  canvassed  by  them  for  Mr.  Finley,  as  shown  by  a  tally-sheet  kept 
by  them,  is  sufficient  proof,  or  any  legal  proof,  that  he  received  141 
votes  at  that  poll.  We  think  that  this  position  of  contestant  cannot  be 
maintained  on  any  principle  of  law  or  evidence.  We  cite  the  following 
authorities  on  this  question: 

When  fr.aiid  or  gross  culpable  negligeoce  on  the  part  of  the  officers  of  an  election  is 
shown,  all  their  acts  and  doings  are  rendered  unworthy  of  credit  and  must  be  disre- 
garded.    (See  McCrary,  section  303.) 

We  repeat,  therefore,  the  opinion  expressed  in  a  former  chapter:  that  a  willful  and 
deliberate  fraud  on  the  part  of  such  aii  officer  being  clearly  proven,  should  destroy  all 
confidence  in  his  official  acts,  irrespective  of  the  question  whether  the  fraud  discov- 
ered is  of  itself  sufficient  to  change  the  result.  The  party  taking  anything  by  an  elec- 
tion conducted  by  such  an  officer  must  prove  his  vote  by  evidence  other  than  the  return. 
(McCrary,  section  431.) 

Where  the  conduct  of  the  election  officers  is  such  as  to  destroy  the  integrity  of  the 
return,  and  to  avoid  the  prima  facie  character  which  they  ought  to  bear  as  evidence, 
due  and  adequate  proof  must  be  demanded  of  each  vote  relied  on.  (Opinion  of  the  court 
in  Mann  vs.  Cassada,  1st  Brewster,  page  fiO.  See  also  Thompson  vs.  Ewing,  a  case  from 
Pennsylvania  courts,  reported  in  1st  Brewster,  107;  Weaver  vs.  Given,  1st  Brewster, 
140;  Givensrs.  Stewart,  2d  Brewster,  page  2;  Jenkins  »».  Hill,N.  H.  Reports,  page,  144.) 

These  well-settled  principles  show  that  contestant  in  a  case  like  this 
cannot  rely  upon  unofficial  statements  of  the  vote  proven  to  be  false,  or 
a  tally-sheet  also  proven  to  be  false,  to  establish  his  vote.  Indeed,  they 
go  further,  and  show  that  the  returns  being  rejected  for  gross  fraud  on 
the  part  of  the  election  officers,  he  cannot  rely  upon  any  act  of  theirs, 
official  or  otherwise,  to  establish  his  vote. 

A  '"'■  tally  fiheeV  is  not  mentioned  in  the  laws  of  Florida.  ]S'o  such  pa- 
per is  required  to  be  kept  or  returned.  If  such  a  paper  was  produced, 
it  would  be  inadmissible  as  evidence,  even  if  no  question  was  made  of 
its  having  been  falsely  kept. 

But  contestant  seeks  to  establish  his  vote  at  this  poll  by  the  evidence 
of  a  witness  who  looked  over  such  a  pajier  and  took  down  certain  figures 
from  it.  When  he  insists,  and  the  committee  concurs,  that  the  officer 
who  kept  it  was  so  false  to  his  trust  and  fraudulent  in  his  conduct  that 
his  return  of  this  poll  cannot  be  accepted  as  the  truth,  and  when  other 
and  reliable  evideuce  clearly  shows  that  the  figures  on  said  tally-sheet 
were  false,  certainly  nothing  in  the  rules  of  law  and  evidence  will  per- 
mit this. 

In  Chisraan  vs.  Anderson,  of  Kentucky,  first  session  Thirty-sixth  Con- 
gress, the  admissibility  of  any  statement  of  the  vote  at  a  precinct  not 
signed  by  the  officers  of  the  election  was  pointedly  raised  and  settled. 
In  that  case  the  poll-book  from  Casy  precinct  was  rejected  as  evidence 
H.  Mis.  58 8 


114  DIGEST    OF    ELECTION    CASES. 

on  the  ground  that  it  was  not  signed  by  any  officer  of  the  election.  It 
was  made  out  in  due  form  and  stated  the  vote  for  each  candidate,  but 
it  was  not  signed,  and  the  committee  held  that  it  was  not  admissible. 
On  this  decision  the  sitting  member  retained  his  seat. 

Had  such  poll-book  been  admitted  the  contestant  would  have  bad  a 
^majority.     (1  Bartlett's  Rep.,  p.  334.) 

The  same  question  arose  in  Barnes  vs.  Adams,  Forty-first  Congress, 
and  the  result  depended  on  its  decision.  Mr.  McCrary  drew  the  report, 
which,  on  this  point,  reads  as  follows:  "We  have  already  said  that 
Glades  precinct,  in  Pulaski  County,  must  be  rejected  because  it  is  not 
certified  to  be  correct  by  any  officer.  This  objection  is  suhstantial  and 
vot  technical.  The  paper  purporting  to  be  a  poll-hook  for  this  precinct 
proves  nothing  whatever.  To  admit  such  a  paper  as  evidence  would  be  to 
set  aside  all  rules  and  open  icide  the  door  for  fraud.''''  (2  Bartlett's  Rep., 
771.)  In  this  case  there  was  no  minority  report,  and  the  report  was 
adopted  by  the  House  without  a  division.  {Id.,  p.  760.)  That  the  con- 
tents of  a  tally-sheet  are  not  admissible  under  the  laws  of  Florida  was 
pointedly  decided  in  the  case  of  Finley  vs.  Wall,  Forty-fourth  Congress. 

The  report  in  this  case,  on  page  22,  reads  as  follows: 

The  law  is  that  where  fraud  is  proved  to  have  been  committed  bj-^  the  officers  of  an 
election  in  conducting  the  election,  no  reliance  can  be  placed  upon  any  of  their  acts, 
and  their  return  must  be  rejected  as  wholly  unreliable.  The  party  claiming  under  the 
election  must  prove  the  actual  vote  in  some  other  way.  The  only  evidence  as  to  what 
the  vote  was  is  from  John  V.  Brown  (page  79),  one  of  the  challengers,  a  Conservative, 
who  says:  "Finley  got  11  and  Wall  588,  I  think.  I  derived  my  iuformation  from  be- 
ing present  and  keeping  a  tally-sheet."  This  certainly  cannot  estat^iish  the  vote,  as 
his  testimony  at  most  can  only  be  evidence  of  the  actual  number  of  votes  cast,  but 
one  of  the  principal  objections  is  that  illegal  votes  were  cast,  and  this,  too,  with  the 
guilty  knowledge  of  the  officers  of  the  election. 

On  this  decision,  excluding  the  contents  of  the  tally-sheet,  Mr.  Finley 
was  seated. 

The  law  pointed  out  a  plain  and  easy  method,  to  wit,  calling  the  voters 
themselves.  This  contestant  has  failed  to  do.  On  this  point  we  think 
the  language  of  the  report  in  the  case  of  Read  vs.  Julian  very  pertinent. 
The  report  says: 

The  committee  therefore  regards  the  fact  that  contestant  made  no  etlbrt  whatever 
to  prove  the  votes  which  he  received,  or  to  which  he  was  entitled,  in  the  district 
assailed  by  contestee,  as  very  strong  circumstantial  evidence  against  him. 

The  only  other  satisfactory  reason  which  we  can  assign  is  the  fact  that  so  many 
voters  had  been  called  and  sworn  on  the  other  side,  that  not  many  were  left  for  the 
benefit  of  contestant,  even  had  he  seen  fit  to  make  any  eftbrt  to  establish  his  vote  at 
this  precinct  by  calling  and  swearing  the  voter. 

The  committee  are  left  without  evidence  that  contestant  "received  any 
vote  at  that  poll,  except  that  Moore  swears  he  thinks  Dukes  voted  for 
him.  But  as  we  have  rejected  two  votes  for  Bisbee  on  Moore's  testimony 
uncorroborated,  we  are  compelled  to  hold  this  vote  not  sufficiently 
l)roved.  Having  rejected  the  return  from  this  poll,  we  deduct  from 
contestant  and  contestee  the  number  of  votes  returned.  Contestee  hav- 
ing proven  by  other  evidence  that  he  did  receive  at  that  poll  308  votes, 
we  add  this  number  to  his  vote. 

The  total  vote  in  the  entire  district  as  returned,  and  the  vote  in  pre- 
cincts not  canvassed,  was  as  follows: 

Bisbee.  Finley. 

11,476         11,481 

Deduct  vote  returned  at  Archer  No.  2 399  141 

11,077        11,340 
Add  vote  at  Archer  No.  2,  proven  by  Mr.  Bisbee 303 

Total 11,385        11,340 


FINLEY    VS.    BISBEE.  115 

In  the  second  canvass  made  by  the  State  canvassers  under  mandate 
of  the  supreme  court,  there  were  two  i)recincts  in  Baker  County  and  the 
returns  from  Chiy  County  thrown  out.  In  the  first  count  made  by  the 
State  canvassers  they  were  included.  But  Jasper  precinct  of  Hamilton 
Couirty  was  excluded. 

We  are  unable  to  find  sufficient  evidence  in  the  record  to  warrant  the 
reji'ctiou  of  the  returns  from  either  of  the  precincts  in  Baker  County  or 
the  returns  from  Clay  County.  And  they  are  included  in  the  foregoing 
tables,  subject  to  the  corrections  on  account  of  illegal  votes,  when  we 
reach  that  subject. 

This  is  the  case  on  the  side  of  contestant. 

THE  CASE   OF   CONTESTEE. 

The  sitting  member  has  raised  a  number  of  questions  in  the  record, 
«ome  of  them  involving  much  labor  and  care  in  their  investigation. 
First,  that  a  large  number  of  voters  in  the  different  counties  in  the  Con- 
gressional district  voted  without  having  registered  according  to  the  laws 
of  Floriila.  Second,  that  a  large  number  of  foreign-born  persons  voted 
without  complying  with  section  3,  Article  IV,  constitution  of  Florida. 
Third,  that  a  large  number  of  persons  not  possessing  other  legal  quali- 
fications <f  voters,  under  the  laws  of  Florida,  were  permitted  to  vote 
(this  includes  minors,  idiots,  ins  ue,  non  residents,  &c.).  Fourth,  that 
certain  precincts  included  in  the  foregoing  table  should  be  rejected  for 
the  reasons  set  out  in  the  pleadings  and  proofs.  If  your  committee 
have  corr«'ctly  settled  the  questions  involved  at  Archer  No.  2,  Alachua 
County,  it  would  seem  a  labor  not  absolutely  necessary  to  proceed  to 
the  investigation  of  other  and  difficult  questions  which  cannot  reduce, 
but  may  increase  contestee's  majoritj'.  But  the  sitting  member  insists 
upon  an  examination  of  the  questions  raised  by  him,  because  he  says 
that  the  proof  in  tlie  record  shows  his  election  regardless  of  any  decision 
tliiit  can  be  nuide  against  him  at  Archer  No.  2.  It  will  be  necessary  to 
.stat<'  some  ot  the  i)rovisions  of  the  constitution  and  statutes  of  Florida, 
to  fully  un<lerstand  the  law  in  regard  to  registration  and  to  foreign  born 
voters.  The  |)resent  constitution  was  adopted  in  1868,  and  Article  IV 
of  theeonstitution  relates  to  elections.  The  sections  bearing  upon  ques- 
tions raised  in  the  record  are  as  follows: 

8ec.  1.  Every  mule  person  of  the  ago  of  twenty-one  years  and  upward,  of  whatever 
race,  culor,  nationality,  or  previons  condition,  who  shall  at  the  time  of  oflfcring  to 
Yot«»  I'e  a  citizen  of  the  Uniieil  States,  or  who  shall  have  declared  his  intention  to 
lii-conie  Kuch  in  coiiformity  to  the  laws  of  the  United  States,  and  who  shall  hav-e  re- 
sidi  (I  iiinl  had  his  haliitation,  domicile,  home,  and  place  of  permanent  abode  in  Florida 
for  I'lit'  year,  iind  in  thr  conuty  for  six  months  next  preceding  the  election  at  which 
ln'  sliill  iill'iT  to  vor<>,  shall  in  such  c»)unty  be  deemed  a  qualified  elector  at  all  elec- 
tions iiinli'i-  this  consi  itntion.  Every  elector  shall  at  the  time  of  his  registration  take 
and  snlisrril)e  to  the  Ibliowing  oath. 

(Here  the  oath  of  allegiance  to  the  Government  of  the  United  States 
antl  ol  Florida  is  set  out.) 

Six",  'i.  No  person  under  guardianship,  non  compon  mentis,  or  insane,  shall  be  quali> 
lied  t->  vote  at  any  election,  nor  shall  any  person  convicted  of  felony  be  qualified  to 
vote  at  any  elect  ion  unless  nstored  to  civil  rights. 

Si".o.  6.  The  legi.slalnre,  at  its  tirst  session  alter  the  ratification  of  this  constitution, 
sha.l  liy  law  provide  for  the  registration  by  the  clerk  of  the  circuit  court  in  each 
<;(MMit.\  ot  all  the  legally-(iualitied  voters  in  such  county  and  for  the  returns  of  elec- 
tion ;  and  shall  al.-o  provide  that  after  the  completion  from  time  to  time  of  such  reg- 
isf ration  no  person  not  duly  registered  according  to  law  shall  be  allowed  to  vote. 


116  DIGEST    uF    ELECTION   CASES, 

The  first  legislature  in  Florida  after  the  adoption  of  the  constitution 
(1868)  did  provide  for  the  registration  of  all  the  voters  in  that  State,  as 
directed  to  do  by  section  0  above  quoted. 

Section  7  of  "An  act  to  i^rovide  for  the  registration  of  electors,"  «&:c. 
(Laws  of  Florida,  1868,  page  3),  makes  it  the  duty  of  the  clerk  of  the 
circuit  court  in  such  county  to  prepare  suitable  books  and  lists  tbr  the 
registration  of  the  names  of  all  electors  residing  within  such  county. 
Then  the  statute  provides  a  caption,  in  the  form  of  an  oath,  to  be  placed 
in  such  book,  so  that  each  person  registering  would  subscribe  thereto. 
The  clerk  is  also  instructed  when  and  how  to  make  the  original  registra- 
tion, and  an  oath  is  prescribed  which  is  to  be  administered  to  each  i>erson 
when  he  registers. 

Sec.  8.  No  person  shall  be  entitled  to  vote  at  any  election  unless  he  shall  have  duly 
registered  six  days  previous  to  the  day  of  election'. 

Section  9  provides  : 

That  th«  county  commissioners  shall  meet  at  the  office  of  the  clerk  of  the  circuit 
court  within  thirty  days  preceding  the  day  on  which  any  election  shall  be  held  and 
examine  the  list  of  registered  electors,  and  erase  tlierefrom  the  names  of  such  persons 
as  are  known  or  may  be  shown  to  their  satisfaction  to  have  been  dead,  or  ceased  to 
reside  permanently  in  the  county,  or  otherwise  liecome  disqualified  to  vote :  Provided, 
That  if  any  person  whose  name  may  be  erased  shall,  on  offering  to  vote  at  any  elec- 
tion, declare  on  oath  that  his  name  has  been  improperly  struck  from  the  list  of  regis- 
tered voters,  and  shall  take  the  oath  required  to  be  taken  by  persons  challenged,  such 
person  shall  have  the  right  to  vote. 

Section  10  provides  for  furuishing  the  election  officers  at  each  pre- 
cinct with  a  revised  list  of  the  registered  voters  of  the  county. 

Unregistered  voters. 

The  sitting  member  insists  that  a  large  number  of  persons  at  various 
polls  in  eleven  of  the  counties  of  the  district  voted,  never  having  been 
legally  registered.  He  introduces,  first,  the  poll-list,  showing  who  did 
vote  at  each  of  the  polls  where  such  illegal  votes  were  cast;  then  pro- 
duces either  a  certified  copy  of  the  original  registration-book,  including 
the  names  of  all  persons  who  had  been  stricken  off,  or  he  produces  a 
copy  of  the  revised  list  of  registration,  together  with  a  list  of  the  names 
stricken  off;  thus  presenting  a  certified  copy  of  the  names  of  all  per- 
sons who  have  ever  been  registered  since  the  adoption  of  the  new  con- 
stitution in  1868.  By  comparing  the  poll-list  with  the  list  of  registra- 
t  on  so  produced,  we  find  that  many  persons  have  voted  who  have  never 
bieen  registered.  If  they  were  sworn  at  the  polls,  as  the  statute  de- 
mauds,  and  took  the  oath  that  they  had  been  registered  and  had  been 
improperly  stricken  off,  then  they  must  have  sworn  falsely,  for  the 
record  itself,  the  highest  evidence,  shows  that  they  never  were  on  the 
registration-book,  and  hence  were  never  stricken  off.  The  contestant  in 
this  case  was  the  contestant  in  the  Forty -fourth  Congress,  in  the  case 
of  Finley  vs.  Walls.  He  was  given  his  seat  upon  a  decision  that  the 
votes  not  found  on  the  revised  list  were  not  sworn  as  the  law  directs. 
In  this  case  they  never  were  registered,  and  such  oath,  if  taken,  would 
have  been  false.  Their  votes  could  not  be  received  even  it  sworn.  In 
that  case  the  oflicers  of  the  election  were  called  and  proved  how  many 
persons  voted  at  each  poll  who  were  not  on  the  revised  registration-list 
supplied  by  the  clerk.  In  this  case  the  voters,  as  shown  by  record  evi- 
dence, never  did  register.  In  the  former  case,  where  it  was  not  ascer- 
tained for  whom  the  legal  votes  were  cast,  they  were  deducted  Irom  the 


FINLEY    VS.    BISBEE.  117 

vote  each  candidate  received,  according  to  a  rule  which  seems  now  well 
established.  It  is  proper  here  to  notice  an  objection  made  by  contestant 
in  regard  to  the  evidence  concerning  the  names  that  had  been  "stricken 
off."  He  insists  that  this  is  no  longer  a  record,  and  cannot  be  introduced 
as  evidence.  This  might  be  true  if  in  "striking  off"  or  "erasing"  the 
name  of  a  voter  from  the  "registration-book"  it  was  so  obliterated  that 
the  name  could  not  be  ascertained;  but  such  is  not  the  fact.  The  name 
"stricken  off"  is  not  so  defaced  that  it  cannot  be  made  out.  In  fact,  we 
find  in  some  cases  the  only  striking  out  that  is  done  is  the  writing  at  the 
end  of  the  name  the  words  "removed,"  or  "  dead,"  or  "  convicted  of  felony," 
&c.  (See  Eecord,  page  708  to  728.)  Again,  the  proof  shows  in  regard 
to  the  county  of  Alachua  that  the  clerk  of  the  circuit  court,  in  order  to 
prepare  the  revised  list  for  the  officers  at  the  various  polls  at  this  elec- 
tion, handed  his  "  registration-book"  to  the  printer  to  prepare  the  revised 
lists  necessary.  But  instead  of  printing  a  revised  list,  he  printed  the 
names  of  those  who  were  stricken  oft'  as  well  as  those  who  had  not  been 
stricken  off".  A  pen  had  been  drawn  through  the  names  of  those  stricken 
off,  but  they  were  still  legible.  (See  evidence  of  Clerk  Webster,  Kecord, 
page  137.) 

The  clerks  of  the  circuit  courts  furnish,  in  the  record  of  this  case,  lists 
of  names  of  all  jjersons  who  have  ever  been  registered  in  their  county 
since  the  adoption  of  the  new  constitution  in  1868.  They  certify  that 
they  are  true  and  correct ;  they  include  the  names  of  those  who  had  once 
been  registered,  but  are  dropped  or  "stricken  off"  when  revised  lists  are 
prei)ared  to  send  to  the  officers  holding  an  election.  We  think  this 
evidence  legitimate  and  i^roper.  From  these  registration-lists  and  the 
poll-lists  we  can,  by  comparison,  clearly  ascertain  the  names  of  all  per- 
sons who  have  voted  but  hav^e  never  been  registered.  We  also  hold 
that  persons  who  have  never  been  registered  could  not  legallj'  vote. 
Upon  this  question  we  cite  the  following  authorities  : 

Finley  vs.  W^alls,  Forty -fourth  Congress: 

If  election  officers  receive  a  vote  without  preliminary  proof,  which  the  law  makes  an 
endential  prerequisite  to  its  reception,  such  vote  is  as  much  an  illegal  one  as  if  the 
voter  had  none  of  the  qualiticatious  required  by  law. 

Brightly's  L.  Cases,  453,  492,  note. 

State  vs.  Hilmoutel,  21st  Wis.,  566. 

State  vs.  Stumpf,  23d  Wis.,  630. 

16  Mich.,  342. 

Registration  is,  under  the  constitutional  laws  of  Florida,  an  essential 
prerequisite  before  voting.  The  law  tells  the  elector,  unless  you  are 
registered  you  shall  not  vote.  It  tells  the  officers  of  election  they  shall 
not  receive  it.  Hence,  such  illegal  votes  cannot  be  counted,  either  by 
the  courts  or  by  unbiased  legislative  bodies,  even  after  they  are  put  in 
the  ballot-box.  Whei  e  the  proof  shows  for  whom  such  illegal  vote  was 
cast,  we  deduct  it  from  the  candidate  who  received  it.  Where  it  is  not 
shown  for  whom  such  illegal  votes  were  cast,  we  adopt  the  well-settled 
rule  which  was  followed  in  the  case  of  Finley  vs.  Walls,  Forty-fourth 
Congress.  This  rule  is  laid  down  by  Mr.  McCrary  in  his  Law  of  Elec- 
tions, section  208  (see  authorities  there  cited),  as  follows : 

In  purging  tho  polls  of  illegal  votes  the  general  rule  is  that,  unless  it  be  shown  for 
which  candidate  they  were  cast,  they  are  to  be  deducted  from  the  whole  vote  of  the 
electiou  division,  and  not  from  the  candidate  having  the  largest  number. 

Of  course,  in  the  application  of  this  rule,  such  illegal  votes  would  be 
deducted  proportionately  from  both  candidates,  according  to  the  entire 


118  DIGEST    OF    ELECTION    CASES. 

vote  returned  for  each.     Thus,  we  will  suppose  that  John  Doe  and  Eich- 
ard  Koe  are  competing  candidates,  and  that  the  official  canvass  shows — 

Vot«8. 

For  John  Doe 6'25 

For  Richard  Roe 575 

Total 1,200 

Majority  for  Doe 50 

But  there  is  proof  that  120  illegal  votes  were  cast.  The  illegal  vote  is 
10  per  cent,  of  the  returned  vote,  and  hence  each  candidate  loses  10  per 
cent,  of  the  vote  certified  to  him.  By  this  rule  Doe  loses  G2^  votes  and 
Eoe  57^  votes,  and  the  result,  thus  rendered,  is  as  follows : 

Doe's  certified  vote 625 

Deduct  illegal  vote 62J 

Total  vote 562i 

Roe's  certified  vote 575 

Deduct  illegal  vote 57 1 

Total  vote 517^ 

Majority  for  Doe 45 

This  seems  to  be  now  a  well-established  rule  in  questions  like  the  one 
before  us.  Below  we  have  applied  this  rule,  and  the  following  table 
Bhows  the  result  by  counties : 

TABLE  OF  VOTES  TO  BE  DEDUCTED  PRO  RATA. 

Loss  to  conlestanUand  confestee. 

Contestant.  Contestee. 

Hamilton  County 81,895  42,652 

Alachua  County 52,351  19,272 

Baker  County 36,200  3,640 

Columbia  County 26,582  1,920 

Suwannee  County 39,092  13,797 

Clay  County 6,000            

Bradford  County 21,261  5,473 

Orange  County 23,742  3,242 

Volusia  County 15,792  2,181 

Putnam  County 2,000      

Total 304.815  92,177 

Bringing  forward  the  vote  for  each  candidate,  afrer  deciding  the 
questions  ^t  Archer,  No.  2,  to  wit: 

BisUee-  Finley. 

11,385  11,340 

Deduct  unregistered  vot«8 92  304 

11,293  11,036 

Foreign-born  vote. 

Contestee  claims  that  7G  illegal  votes  were  cast  for  contestant  by  for- 
eign-born persons,  a  correct  list  of  whom,  with  reference  to  the  record, 
is  here  given : 

Alachua  County. 

1.  Peter  Dougherty  vote-d  for  coutestant.  Record,  p.  344. 

2.  Edward  Wiel  voted  for  contestant  and  admits  he  never  was  uaturalized.  Record, 
p.  358. 

3.  Moses  Endel  voted  for  contestant.  Record,  p.  359. 

4.  William  F.  Flynn  voted  for  contestant.  Record,  359. 

5.  Hymen  Pinkosin  voted  for  coutestant,  Record,  p.  359. 

6.  William  Schoeflin  voted  for  contestant,  Record,  p.  362. 

7.  John  A.  Cellon  voted  for  contestant.  Record,  p.  364. 


FINLEY   VS.    BISBEE.  119 

Foreign-born  persons  who  voted  at  Columhia  County  without  producing  their  naturalization 

papers. 

1.  Carl  A.  Piieschell  voted  for  couteatant,  Record,  p.  453. 

2.  Daniel  J.  Crowley  voted  for  coiitestaut,  Record,  p.  454. 

3.  Julius  Potzdanier  voted  for  coutestant,  Record,  p.  356. 

4.  Frank  De  Leno  voted  for  contestant,  Record,  p.  457. 

5.  Alexander  Youug  voted  for  contestant,  p.  458. 

Nassau  County  — List  of  foreign-horn  persont  who  voted  at  the  Fernandina  precinct,  in  this 
county,  without  producing  their  naturalization  papers, 

1.  Henry  N.  King  voted  for  contestant,  Record,  p.  398. 

2.  Patrick  Kelley  voted  for  contest.aut,  Record,  p.  398. 

3.  C.  H.  Hnot  voted  for  contestant,  Record,  p.  399. 
4    John  Amen  voted  for  contestant.  Record,  p.  399. 

5.  John  Ellerman  voted  for  contestant,  Record,  pp.  399,  400. 

6.  Albert  C.  Glaiber  voted  for  contestant.  Record,  p.  400. 

7.  Richard  H.  Hobirk  voted  for  contestant.  Record;  pp.  400, 401. 

8.  Mathew  Downey  voted  for  contestant.  Record,  p.  401. 

9.  John  Hass  voted  for  contestant.  Record,  pp.  401,402. 

10.  Henry  Peterson  voted  for  contestant,  ReconI,  p.  402. 

11.  John  McGuire  voted  for  contestant.  Record,  p.  402. 

12.  Michael  Fitzpatrick  v<>ted  for  contestant,  Record,  p.  402. 

13.  .Julius  A.  Klotz  voted  for  contestant.  Record,  p.  403. 

14.  Henry  Barker  voted  for  contestant,  Record,  p.  403. 

15.  James  Kelly  voted  for  contestant.  Record,  p.  403. 

16.  Gustav  Stark  voted  for  contestant,  Record,  p.  404. 

17.  P.  W.  O.  Koerner  voted  for  contestant,  Record,  pp.  404,  405. 

18.  Louis  Laiige  voted  for  contestant.  Record,  p.  404. 

19.  liouis  Lohman  voted  for  contest.ant,  Record,  p.  405. 

20.  John  F.  Lohman  voted  for  contestant,  Record,  p.  406. 

21.  William  Schmitzer  voted  for  contestant.  Record,  p.  406. 

22.  James  McGiffiu  voted  for  contestant.  Record,  p.  406. 
[McGiffiu  was  inspector.] 

23.  J.  H.  Mooney  voted  for  contestant,  Record,  p.  405. 
Record,  p.  397, 

Record,  pp.  406, 407. 

Putnam  County. —  Votes  of  foreigners  in  this  county  tcithout  producing  naturaKzationpaper$. 

1.  William  Ivers  voted  for  contestant,  Record,  p.  422. 

2.  George  MuUer  voted  for  contestant,  Record,  p.  423. 

3.  John  M.  Ivers  voted  for  contestant,  Record,  p.  424. 

4.  James  Kennedy  voted  for  contestant.  Record,  p.  425. 

5.  Edward  Boyle  voted  for  contestant,  Record,  p.  426. 

6.  John  Beale  voted  for  contestant.  Record,  p.  427. 

7.  Peter  Petermau  voted  for  contestant,  Record,  p.  428. 

8.  Andrew  Shelley  voted  for  contestant,  Record,  p.  429. 

9.  Frederick  Tolley  voted  for  contestant,  Record,  p.  429. 

10.  John  H.  Solowsky  voted  for  contestant,  Record,  p.  430. 

11.  Bernard  L.  Lillintbral  voted  for  contestant,  Record,  p.  438. 

Duval  County. — Foreign-born  persons  who  voted  for  contestant  without  producing  their  nat- 
uralization paptrs  as  required  by  the  constitution. 

1.  Henry  Peters.  Record,  pp.  547, 548. 

2.  Patrick  P.  Crolley,  Record,  pp.  548,  549. 

3.  Hugh  Hearty,  Record,  p.  549. 

4.  Thomas  Scales,  Record,  p.  550. 

5.  Joseph  M.  Mitchell,  Record,  p.  551. 

6.  Joseph  Jacqumain.  Record,  p.  551. 

7.  Charles  K.Poettiug,  Record,  pp.  551,552. 

8.  Patrick  Falen,Re(0'd,  p.  5.Vi. 

9.  John  Murphy,  Record,  J).  552. 

10.  Charles  Gebtiart,  Record,  pp.  .564,  .565. 

11.  William  Rich,  Record,  pp.  .565,  566. 

12.  Herman  Elkin,  Record,  p.  569. 

13.  Nick les  Stobel,  Record,  p.  569. 

14.  Thomas  B.  W^alsh,  Record,  p.  ,570. 


120  DIGEST    OF    ELECTION    CASES. 

15.  Samuel  Benlisa,  Record,  p.  570. 

16.  Mathew  Mahoney,  Record,  p.  575. 

17.  Frank  Crolly,  Record,  pp.  575, 576.  '  '  • 

18.  John  Higgins,  Record,  p.  576. 

19.  Henry  A'^an  Dollen,  Record,  p.  576. 

20.  JohnGray,  Record,  p.  577. 

21.  Joseph  Santo,  Record,  p.  577. 

22.  Lewis  Chicony,  Record,  p.  580. 

23.  Isadore  Grunthal,  Record,  p.  581. 

24.  M.  C.  Colleton,  Record,  p.  581. 

25.  HiigoGrunthal,  Record,  p.  582. 

26.  Jacob  Grunbiuger,  Record,  p.  583. 

Volusia  County. 

Frank  Boremaster,  Record,  p.  494. 
Roderick  Gillespie,  Record,  p.  494. 

This  list  contains  seventy-four  names,  for  upon  an  examination  of  the 
evidence  we  are  not  satisfied  that  the  other  two  persons  were  foreigners. 

This  is  a  similar  question  to  that  discussed  above  relating  to  unregis- 
tered voters.  The  qualifications  of  an  elector  in  Florida  are  prescribed 
by  the  constitution  of  that  State.  It  will  be  remembered  that  section 
1,  article  4  of  the  constitution,  quoted  above,  prescribes  the  general  qual- 
ification of  voters.  But  a  citizen  of  Florida  cannot  vote  simi^ly  because 
he  possesses  these  qualifications.  There  are  other  constitutional  pro- 
visions which  such  citizen  must  comj)ly  with  before  he  can  vote.  "VVe 
have  just  seen  that  under  section  6,  article  4,  constitution  of  Florida, 
"no  person  not  duly  registered  according  to  law  shall  be  allowed  to 
vote."  This  applies  to  a  native-born  citizen.  There  is  still  another 
provision  of  the  constitution  which  foreign-born  persons  must  comply 
with  before  they  can  vote.    It  is  as  follows : 

Sec.  3.  At  any  election  at  which  a  citizen  or  subject  of  any  foreign  country  shall 
offer  to  vote  under  the  provisions  of  this  constitution,  he  shall  present  to  the  persons 
lawfully  authorized  to  conduct  and  supervise  such  election,  a  duly  sealed  aud  certified 
copy  of  his  declaration  of  his  intention,  otherwise  he  shall  not  be  allowed  to  vote. 
Andany  naturalized  citizen  offering  to  vote,  shall  produce  before  said  persons  lawfully 
authorized  to  conduct  and  supervise  the  election  the  certificate  of  naturalization,  or 
a  duly  sealed  and  certified  copy  thereof,  otherwise  he  shall  not  be  permitted  to  vote. — 
(Acts  of  1868  ;  Constitution,  section  3,  pp.  211,  212.) 

Now,  contestant  concedes  that  a  vote  cast  by  a  person  not  registered 
is  illegal.  And  it  is  too  well  settled  to  be  disputed.  Eegistration  is  a 
"  necessary  prerequisite  "  to  be  com  j)lied  with  by  the  voter  before  he  can 
legally  vote.  The  constitution  of  Florida  makes  another  '•  necessary 
prerequisite"  of  a  foreign-born  person  before  he  shall  vote.  It  tells  liim 
he  shall  present  to  the  officers  of  the  election  his  duly  certified  and 
sealed  "naturalization  papers"  or  his  "declaration  of  intention  "  (where 
he  has  not  taken  out  his  final  papers),  "  otherwise  he  shall  not  be  allowed 
to  vote." 

And  it  seems  to  us  that  the  same  principle  must  be  applied  in  the 
case  of  foreign-born  persons  who  did  not  present  their  jjapers,  as  the 
law  required,  to  the  officers  at  the  election,  that  we  have  applied  to  un- 
registered voters.  The  requirement  of  the  constitution  is  mandatory. 
It  requires  a  certain  thing  to  be  Aona  hy  a  foreign-horn  person^  "  otherwise 
he  shall  not  vote." 

It  is  urged  by  contestant  that  they  were  not  challenged,  and  had  they 
been  required  so  to  do,  that  in  most  cases  tbey  could  have  produced 
the  papers  the  constitution  required.  We  might  say  the  unregistered 
voters  were  not  challenged.  They,  too,  could  have  registered  if  they 
knew  the  law  required  it,  and  the3'  desired  to  do  so.     Each  has  failed 


FIXLEY    VS.    BISBEE.  121 

to  do  what  the  constitution  of  the  State  has  commanded  before  they 
can  legally  vote. 

This  is  not  something  the  law  requires  of  the  officers  of  election.  It 
is  a  requirement  of  the  citizen,  to  qualify  him  to  vote.  The  constitution 
of  the  State  challenged  his  vote  unless  he  complied  with  the  supreme 
law  of  the  State. 

The  right  of  suftrage  is  not  a  natural  right,  nor  is  it  an  absolute  unqualified  per- 
sonal right.  It  is  the  right  derived  in  this  country  from  constitutions  and  statutes.  It 
is  regulated  hy  the  States,  and  their  power  to  fix  the  qualiticationsof  voters  is  limited 
only  by  the  15th  amendment  to  the  Constitution,  which  forbids  any  distinction  on 
account  of  "race,  color,  or  previous  condition  of  servitude." — (McCrary,  section  3,  and 
cases  therein  cited.) 

But  the  election  franchise,  like  othei  rights,  is  not  that  of  unrestrained  license, 
lu  a  Government  of  law,  the  law  must  regulate  the  manner  iu  which  it  must  be  exer- 
cised. The  time,  and  occasion,  and  mode  of  voting  are  to  be  prescribed  by  the  legis- 
1  iture,  except  in  so  far  as  the  constitution  has  a  voice  of  its  own  on  the  subject,  and 
therefore  it  is  that  laws  have  been  created  for  election  oflScers,  regulating  the  hours 
of  the  day  during  which  the  election  shall  be  held,  and  the  proof  necessary  to  estab- 
lish the  right  to  vote.  *  *  *  'fhe  elector's  privilege  is  not  therefore  a  mere  consti- 
tutional abstraction,  but  it  is  to  be  exercised  in  subordination  to  law,  and  on  proof  of 
title  of  the  person  claiming  its  exercise.  The  right,  however  well  founded  in  fact, 
may  be  lost  for  want  of  such  evidence  of  titles  as  the  law  demands."  (Opinion  of  court 
ill  case  of  Batturs  vs.  Megary,  Brewster  Rep.,  vol.  1,  p.  171;  see  also  2d  Bartlett,  831.) 

In  Pennsylvania,  persons  not  assessed  for  taxes  were  required  by  the 
laws  of  the  State  to  answer  certain  questions  under  oath,  concerning 
tax,  age,  and  residence,  and  also  to  prove  their  residence  by  the  oath 
of  a  qualilied  voter. 

In  the  following  cases  it  was  distinctly  held  that  a  vote  cast  without 
complying  with  this  statute  was  illegal  and  could  not  be  counted. 
(Mann  vs.'  Cassada,  1st  Brewster,  p.  12;  Myers  rs.  Moffett,  1st  Brewster, 
p.  1'30 ;  Weaver  rs.  Given,  1st  Brewster,  p.  141 ;  Sheppard  vs.  Gibbons, 
2d  Brewster,  i)p.  117-129.) 

In  Brightly's  Leading  Cases,  p.  492  (note),  the  author  says: 

Votes  received  from  electors  whose  names  do  not  appear  on  the  assessment  list 
ulthotU  the  preliminary  proof  required  by  law  were  formerly  held  to  be  prima  Jade  illegal 
and  to  be  rejected  froui  the  count  unless  adequate  proof  were  made  on  the  trial  of  the 
legality  of  such  vote.  (Mann  rs.  Cannada  and  Weaver  vs.  Given.)  But  the  modem 
and  better  opinion  seems  to  be  that  such  votes  heiug  illegal  when  received  cannot  be  made 
legal  by  i lie  production  of  evidence  of  qualification  on  the  trial  ivhich  ought  to  have  been  but 
was  not  produced  to  the  election  officers. 

He  cites  Sheppard  vs.  Gibbons  and  Myers  vs.  Moffett. 
In  the  case  of  Sheppard  vs.  Gibbons  the  court  says : 

A  vote  prima  facie  illegal  must  be  disallowed  if  the  roter  did  not  at  the  time  of  offer- 
ing it  produce  the  preliminary  proof  required  by  law. — (Brightly,  p.  boti  and  572.  Se® 
Covode  vs.  Foster,  M  Bartlett,  600  et  seq.,  and"  Wright  vs.  Fuller,  ibid.,  159  and  160.) 

Again,  the  statutes  of  Wisconsin  provide  that  no  person,  not  regis- 
tered, should  be  allowed  to  vote  unless  he  produced  his  own  affidavit 
and  the  affidavit  of  a  householder  of  the  district  of  his  residence  iu  the 
district.  In  a  case  reported  in  21st  Wis.,  p.  566,  it  is  held  that  the  affi- 
davits must  be  produced,  or  the  vote  is  illegal  and  must  be  thrown  out. 

This  is  an  imi>ortant  case,  and  all  the  principles  arising  under  section 
3,  article  4,  constitution  of  Florida,  concerning  foreign-born  voters  are 
decided.  In  that  case  the  officers  of  the  election  acted  upon  their  own 
knowledge  of  the  residence  of  these  unregistered  voters.  They  (the 
voters)  did  actually  live  iu  the  district  where  they  offered  to  vote,  and 
could  and  doubtless  would  have  produced  the  affidavits  required  by  law 
if  the  officers  of  the  election  had  required  it.    The  court  says  no  fraud  nor 


122  DIGEST    OF    ELECTION    CASES. 

misconduct  on  the  part  of  the  officers  of  the  election  or  voters  was  in- 
tended— the  voters  were  not  challenged ;  but  the  statnte  was  imperative 
and  the  votes  illefjal.  The  statute  in  that  case  is  as  follows :  "  Xo  vote 
shall  be  received,"  &c.  The  constitution  of  Florida  says :  "  Otherwise 
he  shall  not  be  permitted  to  vote."  If  this  was  a  statute  and  not  a  con- 
stitutional provision  it  is  as  imperative  as  the  statute  of  Wisconsin ; 
both  use  neg:ative  words,  and  to  vote  without  complying  with  either  is 
illegal  and  the  vote  cannot  be  counted. 

The  court  in  this  case  was  unanimous.  The  questions  are  ably  dis- 
cussed, and  decide  that  the  voter  is  made  by  law  the  agent  to  execute 
it.  An  act  is  required  to  be  done  by  him,  and  until  he  complies  with 
the  law,  though  he  may  in  all  other  respects  have  the  legal  qualifica- 
tions, he  cannot  vote. 

The  same  principle  is  again  confirmed  in  Bancroft  rs.  Slumpf,  23d 
Wis.,  630. 

We  find  no  authorities  in  conflict  with  those  above  cited.  Contestee 
shows  by  proof  that  74  foreign-born  persons  voted  without  complying 
with  sec.  3,  art.  4,  of  the  Constitution.  Fifty  three  of  these  testify  them- 
selves that  they  voted  for  contestant,  four  others  that  they  voted  the 
whole  Democratic  ticket.  Seventeen  others  are  called,  and  testify  that 
they  voted  without  producing  the  necessary  certificates.  They  were 
asked  by  contestee  for  whom  they  voted  for  Congress,  and  were  told  by 
contestant's  counsel  they  were  not  required  by  hiw  to  disclose  that  fact, 
and  thereupon  they  refused  to  answer  for  whom  they  voted.  We  are 
of  opinion,  their  votes  being  illegal,  they  were  bound  to  answer,  and  re- 
fusing to  do  so  at  the  suggestion  of  contestant's  couns^il  is  very  strong 
presumptive  evidence  that  they  voted  for  contestant.  Certainly  in  a 
case  like  this  the  same  strictness  in  evidence  would  not  be  required  as 
in  ordinary  cases. 

Contestee,  however,  introduced  witnesses  (several  are  Democrats)  who 
are  well  acquainted  with  these  voters,  and  have  known  them  for  years. 
Some  of  the  witnesses  lived  in  the  same  precinct  and  had  been  candi- 
dates for  office  where  these  voters  resided ;  they  testifv  that  each  of 
these  19  voters  are  Democrats,  adhere  to  the  Democratic  party,  talked 
Democratic  prior  to  that  election,  and  had,  theretofore,  voted  the  Demo- 
cratic ticket. 

When  a  voter  refuses  to  testify  for  whom  he  voted,  it  is  competent,  to  resort  to  cir- 
cnmstantial  evidence,  such  as  that  he  was  an  active  member  of  a  particular  party, 
&c.     (McCrary,  sec.  293.) 

The  committee  think  they  are  fully  warranted  from  the  evidence  to 
say  that  these  74  voters  illegally  cast  their  ballots  for  contestant,  and 
they  deduct  this  number  from  his  vote.  The  record  shows  the  following 
voters  were  illegal  for  the  cause  stated,  and  were  cast  for  Mr.  Finley : 

J.  D.  Land,  non-resident,  voted  at  Jasper,  Hamilton  County. — Record, 
pp.  510,  511,  513,  and  514. 

Benjamin  Bowman,  a  non-resident,  same  precinct. — Eecord,  pp.  510, 
511. 

Wm.  Ford,  non-resident,  voted  at  Waldo  precinct,  Alachua  County. — 
Record,  pp.  364-6. 

Jno.  F.  Semple,  ticket  fraudulently  changed  without  knowledge  of 
voter ;  voted  at  Court-House,  Columbia  County. — Record,  pp.  469,  470, 
471,472. 

Lewis  Niblack,  minor,  same  precinct. — Record,  pp.  476,  483. 

W.  D.  Bellany,  nonresident,  voted  at  precinct  No.  4,  Columbia  County. 
— Raijord,  p.  462. 


FINLEY   VS.    BISBEE.  123 

H.  W.  Hee,  noa-resideut,  same  precinct. — Record,  pp.  462,  463. 
Americas  Bivens  (convict  for  felony),  same  precinct. — Eecord,  pp.  463^ 
478,  479. 
John  Stone,  non-resident,  same  precinct. — Record,  p.  469. 
Dock  Mills,  non-resident,  same  precinct. — Record  pp.  480,  481. 
Leon  Gw.vnn,  non-resident,  same  precinct. — Record,  p.  483. 
Wm.  McNish,  voted  under  duress,  same  precinct; 
Stephen  Thomas,  voted  under  duress,  same  precinct ; 
Joseph  Simmons,  votes  under  duress,  same  precinct; 
Thomas  Bovd,  voted  under  duress,  same  precinct. — See  Record,  from 
pp.  935  to  943. 

Clay  County : 
Henry  H.  Green,  non-resident. — Record,  pp.  500,  501,  502,  504. 
Elias  Padgett,  sr.,  non-resident. — Record,  pp.  504,  559,  560. 
Geo.  H.  Kersey,  non-resident. — Record,  p.  504. 

Putnam  County : 
Henry  Wamkee,  idiot. — Record,  p.  431. 
Wm.  H.  Lanuigan,  nonresident. — Record,  pp.  436,  437,  438,  439,  440. 

Duval  County: 
Aaron  Isaacs,  non-resident. — Record,  pp.  539,  540,  558. 
Wm.  Moore,  non-resident. — Record,  pp.  560,  561,  562,  and  595. 

[Note.  Persons  who  had  not  resided  12  mouths  in  the  State,  or  6  months  in  the 
county  where  they  voted,  are  inchided,  and  termed  uon -residents.] 

Thus  it  is  seen  that  23  illegal  votes,  not  included  in  the  "  unregistered'^ 
votes  or  the  ''foreign-born"  votes,  voted  for  contestant.  The  proof 
either  shows  they  voted  directly  for  Mr.  Finley,  or,  as  is  the  case  in  some 
of  the  districts,  Mr.  Bisbee  received  no  vote,  or  proved  the  one  or  more 
votes  he  did  receive  by  the  persons  who  voted  for  him.  Hence  these 
23  votes  are  to  be  deducted  from  Mr.  Finley's  vote.  These,  with  the 
illegal  foreign-born  votes,  make  97  more  illegal  votes  to  be  deducted 
from  Mr.  Finley's  vote,  bringing  down  the  result,  to  wit: 

Bisbee.        Finley. 

11,293       11,036 

Deduct 97 


11,293      10,939 
Bisbee's  majority,  354. 

Contestee  assails  in  his  pleadings  several  precincts  in  the  various 
counties,  and  introduces  much  proof  in  the  record  concerning  gross  care- 
lessness and  violations  of  the  election  laws  by  the  ofQce<rs  of  election, 
&c.  He  raises  various  other  questions,  such  as  compelling  voters  to 
vote  numbered  ballots  or  be  discharged  by  their  employers,  duress,  re- 
quiring open  ballots  to  be  voted,  &c.  But  without  specifying  even  the 
preciuctsattackedorthe  other  questions  insisted  upon,  muchless  stating 
the  proof  adduced  upon  each  question  raised,  your  committee  report 
that,  after  a  very  careful  examination  of  all  the  testimony  relating  to 
these  questions  not  yet  discussed  in  this  report,  the  proof  is  not,  perhaps, 
suflBcient  to  warrant  them  in  throwing  out  other  precincts  or  to  change 
the  resultas  above  stated.  There  is  no  proof  of  absolute  fraud  suflficient 
to  justify  the  rejection  of  the  returns  of  these  precincts.  The  officers 
of  the  election  are  censurable  for  their  misconduct ;  but  by  the  rejection 
of  illegal  and  unregistered  votes,  as  we  have  done  above,  we  have  con- 
cluded that  the  returns  have  been  sufficiently  purged,  and  the  vote  re- 
maining is  the  true  vote  cast  at  this  election.     We  iind  much  to  con- 


124  DIGEST    OF    ELECTION    CASES. 


demn  in  the  carelessness  and  want  of  knowledge  on  the  part  of  several 
of  the  officers  who  conducted  the  election,  amounting  in  some  instances 
to  violations  of  the  criminal  law.  But  as  the  constitutioQ  of  the  State 
and  the  laws  under  it  relating  to  elections  changed  the  law  at  compar- 
atively a  recent  date,  there  is  some  little  palliation  for  their  ignorance 
of  the  law  of  elections. 

Your  committee,  in  their  examination  of  this  contest,  have  attempted 
to  generalize  the  facts  and  to  classify  them,  so  that  they  could  be  treated 
and  discussed  under  their  proper  heads. 

They  found  a  mass  of  evidence,  covering  about  1,000  printed  pages. 
More  than  400  witnesses  have  been  examined  and  much  record  and 
documentary  evidence  is  also  included.  To  have  quoted  the  testimony 
setting  forth  the  facts  in  detail  would  have  drawn  out  this  report  to 
great  length,  and  perhaps  have  involved  it  in  some  confusion. 

The  committee,  satisfied  of  the  correctness  of  the  conclusion  above 
stated,  recommend  the  adoption  of  the  following  resolutions  : 

Resolved,,  That  Jesse  J.  Finley  was  not  elected  and  is  not  entitled  to  a 
seat  in  the  Forty-fifth  Congress  from  the  second  Congressional  district 
of  Florida. 

Besolvedj  That  Horatio  Bisbee,  jr.,  was  elected  and  is  entitled  to  a  seat 
in  the  Forty-fifth  Congress  from  the  second  Congressional  district  of 
Florida. 

JAC.  TURNEY. 

J.  M.  THORNBURGH. 


JOSEPH  H.  ACKLEN  YS.  CHESTER  B.  DARRAIili. 

Third  Congressional  District  of  Louisiana. 

Contestant  charged  gross  fraud  and  mismanagement  ou  the  part  of  the  election  offi- 
cers and  the  returning  board. 

Held,  That  where  the  poll  was  removed  from  the  place  fixed  by  law  to  another  and 
unauthorized  place,  such  poll  must  be  rejected. 

Before  courts  or  legislative  bodies  will  give  weight  to  results  of  recouuts  of  ballots 
it  must  be  shown  absolutely  that  the  ballot-boxes  containing  such  ballots  had 
been  safely  kept;  that  the  ballots  were  undoubtedly  the  identical  ballots  cast  at 
the  election ;  and  when  these  facts  are  established  beyond  all  reasonable  doubt, 
then  full  force  and  effect  are  giveu  to  the  developments  of  the  recount. 

The  return  of  the  vote  made  by  the  Wells-Andersou  returning  board  must  be  disre- 
garded because  of  the  most  flagrant  frauds,  and  of  the  exercise  of  judicial  power 
by  said  board  arbitrarily  for  no  other  reason  than  to  achieve  a  result  in  accord- 
ance with  their  will.  The  count  of  the  votes  as  declared  by  the  present  legal 
board  of  canvassers  in  all  the  parishes  excejit  Saint  Martin's,  La  Fourche,  and 
Iberville  must  be  adopted. 

The  House  adopted  the  majority  report  February  20,  1878. 
Joseph  H.  Acklen  sworn  in. 


ACK!  en:  V8.  darrall.  125 

February  S,  1S78. — Mr.  John  T.  Harris,  from  tlie  Committee  on 
Eiectious,  submitted  the  following 

liEPOJiT: 

The  Committee-  on  Elections,  to  whom  was  referred  the  contested  election 
case  of  Joseph  H.  Acklen  vs.  Chester  B.  Darrall,  from  the  third  Con- 
gressional district  of  Louisiana,  submit  the  following  report: 

Contestant  bases  his  claim  to  the  seat  in  contest  upon  substantially 
the  following:  grounds: 

1st.  That  the  action  of  the  returning  board  of  Louisiana  (known  as 
the  "Wells- Anderson  returning  board"),  in  throwing  out  certain  polls 
in  the  parishes  of  La  Fayette  and  Iberia  in  the  interest  of  coutestee, 
was  illegal,  unjust,  and  fraudulent,  and  deprived  contestant  of  over 
one  thousand  votes. 

2d.  That  large  and  flagrant  frauds  were  committed  in  the  interest  of 
coutestee  in  La  Fourche  Parish,  whereby  contestant  was  deprived  of 
several  hundred  votes,  and  that  at  poll  17  in  said  parish  the  fraud  was 
so  gre^at  as  to  vitiate  and  absolutely  annul  the  election  held  at  that  poll. 

3d.  That  the  returns  from  Saiut  Martin's  Parish  were  forged  and  false, 
and  render  null  and  void  the  votes  cast  in  that  parish  at  the  election. 

4th.  That  in  the  parish  of  Iberville,  at  various  polls,  and  notably  at 
polls  1,  2,  4,  5,  C,  and  7,  owing  to  the  fraud,  neglect,  carelessness,  or 
corruption  of  the  election  oflBcers,  many  hundreds  of  votes  having  con- 
testant's name  were  counted  for  coutestee,  and  many  hundreds  of  bal- 
lots which  were  blank  as  to  the  Congressman  were  counted  for  cou- 
testee. 

To  these  and  other  allegations  the  contestee  responded  by  a  general 
denial,  filing  as  his  title  and  claim  to  said  seat — 

First,  the  certificate  of  Emile  Honore,  who  claimed  t^  be  secretary  of 
state  under  the  Packard  government,  and  which  showed  the  result  of 
the  election  to  be  that  indicated  by  the  annexed  table : 


'                                                  Names  of  parishes. 

n 

g 

w 

2,059 

2,070 

1,692 

1,869 

1,9«6 

2,389 

1,443 

1,095 

654 

228 

70 

91 

1,215 

1,078 

1,677 

1,687 

Terrebonne . . 

1,393 

1,425 

922 

1,027 

638 

955 

225 

Calcasieu - -  - 

1,291 

Total 

15,626 

13,  533 

And,  secondly,  the  contestee  claimed  that  by  the  returns  of  the  pres- 
ent board  of  canvassers  under  the  present  government  he  was  also 
elected. 

The  contestant  filed  the  foUowing  certificate  issued  to  him  by  the 
present  secretary  of  state.    This  certificate  embraced  aU  the  votes  as 


126 


DIGEST    OF    ELECTION    CASES. 


cast  and  returned,  with  no  polls  thrown  out,  but  with  the  parishes  of 
Saint  Martin's  and  Iberville  excluded  for  the  reasons  therein  assigned ; 


Ascension 

Assumption  ... 

Terrebonne 

Saint  Mary's  . . 

Iberia 

La  Fayette 

Vermillion 

Calcasieu 

Cameron 

La  Fourche 

Saint  Martin's ' 
Iberville  t 


Karnes  of  parishes. 


1.215 
1,  679 
1,393 
1.423 
1.  242 
1,  157 

S.'iS 
1,  291 

225 
2,08a 


12,660 


*  This  parish  was  rejected  by  the  board  of  canvassers,  whose  report  is  hereto  attached,  the  returns  of 
said  parish  having  been  tampered  with  while  in  Republican  bands.  The  parish  gave  a  Democratic 
majority  in  1874.  as  by  reference  to  the  report  of  the  committee  on  elections  and  qualifications  of  the 
iiouse  of  representatives.     (See  page  27  of  the  journal  of  the  house  of  1S75,  hereto  attached.) 

t  The  amount  of  votes  for  member  of  Congress  in  this  parish  before  Hou.  James  Crowell,  parish  judge 
of  said  parish,  as  shown  by  the  report  of  the  board  of  experts,  now  on  file  in  this  otHce.  a  certilieil  copy  . 
of  which  is  hereunto  annexed,  shows  the  vote  for  member  of  Congress  to  bo  as  follows  :  For  Joseph  H. 
Acklen,  1,595  votes,  and  C.  B.  Darrall  1,253  votes:  while  thereiiim  uiade  by  the  supervisor  of  reyi-tra- 
tion  for  said  parish  gave  Joseph  H.  Acklen  1,078  votes  and  O.  B.  Darrall  2^070  votes.  If  the  pari>h  of 
Iberville  is  not  included  in  the  addition  of  votes,  there  lieing  two  different  returns  of  the  vote  tor  mem- 
ber of  Congress  for  the  third  Congressional  district  of  this  State,  on  file  in  this  office,  then  the  vote  of 
Joseph  H.  Acklen  is  12,666  and  tbat  of  C.  B.  Darrall  is  12,621,  or  a  majorit.s  of  forty-five  votes  in  favor 
•of  Joseph  H.  Acklen.  If  the  vote  of  Iberville  Parish,  as  shown  by  the  return  of  the  parish  juilge  and 
board  of  experts,  is  added  to  the  above,  then  the  vote  stands  as  follows:  For  Joseph  11.  Acklen  14,261 
and  C.  B.  Darrall  13,874. 

L  the  undersigned,  secretary  of  the  State  of  Louisiana,  do  hereby  certify  that  the  above  and  fore- 
going consolidated  statement  of  the  vote  is  a  true  extract  from  the  original  returns  ma<leby  the  super- 
■visors  of  registration  of  the  election  held  in  the  above-named  parishes  for  Congressional,  State,  and 
parochial  officers  of  this  State  on  the  7ih  day  of  November,  1876. 

Witness  my  hand  and  the  seal  of  the  State  of  Louisiana,  at  the  citv  of  New  Orleans,  this  8th  <]ay  of 
October,  A.  D.  1877. 

[SEAL.]  WILL.  A.  STRONG. 

Secretary  of  State. 

The  results  of  15,626  votes  for  contestee,  and  13,533  votes  for  con- 
testant, as  shown  in  the  certificate  filed  by  contestee,  are  obtained  by 
the  Wells- Anderson  returning  board  having  thrown  out  certain  polls  in 
the  parishes  of  Iberia,  La  Fayette,  and  La  Fourcbe,  which  polls  showed 
large  Democratic  majorities. 

This  committee  deem  it  unnecessary  to  demonstrate  the  utter  uncon- 
stitutionality of  the  returning  board  law,  and  the  utter  illegality  of  the 
action  of  the  members  of  said  board  in  canvassing  tlie  returns  of  this 
election.  The  committee  find  a  full  brief  on  the  law  on  pp.  19  to  22 
Record,  and  a  decision  of  the  Supreme  Court,  pj).  3*  to  12,  discussing 
<]uestions  incident  thereto.  The  contestee  produces  no  suiiicient  evidence 
to  sustain  the  action  of  the  board ;  the  very  supervi.sor  of  La  Fayette,  J. 
A.  Veazey,  whose  testimony  is  quoted  further  on,  di-clares  he  ditl  not 
make  the  protest  upon  which  the  board  pretends  to  have  acted  in  throw- 
ing out  three  polls  in  this  parish.  Poll  4,  Iberia  Parish,  the  only  one 
thrown  out  here,  is  conceded  to  contestant  by  coiite.stee  (p.  56,  contes- 
tee's  brief),  so  the  committee  do  not  deem  it  necessary  to  refer  to  the 
evidence  as  to  this  parish.  The  polls  of  La  Fourche  are  noticed  under  the 
testimony  quoted  from  that  parish.  But,  aside  from  these  facts,  the  out- 
rageous and  fraudulent  action  of  that  board,  as  well  as  the  questions  of 
law  connected  therewith,  have  been  twice  made  a  subject  of  investiga- 


ACKLEN    VS.    DARRALL.  127 

tion  and  examination  by  two  committees  of  the  last  House  of  Represent- 
atives, the  deliberations  and  investigations  of  both  of  which  have  made 
the  illeg:al  and  fraudulent  action  of  this  notorious  board  a  matter  of 
well-authenticated  contemporaneous  history,  and  inclines  this  committee 
to  pay  little  heed  to  any  result  declared  by  it.  The  following  testimony 
of  J.  A.  Veazey,  sui)ervisor,  and  Charles  Guidry  shows  the  manner  iu 
which  the  secret  afiidavits  upon  which  the  board  acted  were  prepared: 

Testimony  of  J.  A.Veazey  (p.  166  Record). 

J.  A.  Veazey,  being  duly  sworn,  deposes  and  says  as  follows: 

Question.  Please  state  your  residence. — Answer.  I  reside  in  the  parish  of  La  Fayette. 
Q.  Were  you  or  were  you  not  supervisor  of  registration  for  this  parish  at  the  last 
election? — A.  I  was. 

Q.  Did  you  see  or  not  the  protest  signed  with  your  name  which  appeared  before  the 
returning  board? — A.  I  saw  it. 

Q.  Please  state  whether  that  protest  was  made  from  information  received  or  other- 
wise.— A.  It  was  made  from  iufornuition  received. 

Q.  Did  you  know  or  not  the  facts  contained  therein? — A.  No;  because  I  did  not  read 
them. 

Q.  As  far  as  you  know,  what  was  the  character  of  the  election  in  the  parish? — A. 
Fair,  as  far  as  I  could  see. 

Q.  In  making  that  protest  did  you  intend  the  facts  it  contained  as  being  of  your 
own  knowledge,  or  was  it  simply  a  report  that  you  made  from  reports  which  came  to 
you? — A.  It  was  simply  a  report  which  I  made  from  reports  whicli  came  to  me. 

Q.  Will  yon  please  state  where  that  protest  was  made? — A.  In  the  city  of  New  Or- 
leans. 

Q.  Did  5'oti  pay  any  attention  or  not  to  it  while  it  was  being  written  ? — A.  I  did  not. 
Q.  Did  you  know  or  not  that  in  signing  that  protest  you  were  swearing  to  the  oc- 
cnirence  of  fraud,  violence,  and  intimidation? — A.  No,  I  did  not. 

Q.  Do  you  know  who  wrote  the  iiffidavii  which  was  given? — A.  I  do  not  remember, 
y.  Were  you  told  by  any  one  that  it  was  necessary  to  complete  your  returns  to  in- 
corporate in  them  a  proti-st  based  upon  the  affidavits  of  parties  iu  the  parish  ? — A.  I 
do  not  recollect. 

Q.  Did  you  or  not  make  out  a  new  consolidated  statement  of  votes  excluding  the 
polls  objected  to  in  the  affidavit? — A.  Yes;  I  madw  another  one. 

Q.  How  many  polls  were  left  out  iu  the  consolidated  statement  which  you  filed  be- 
fore the  returning  board? — A.  Two  polls. 

Q.  Do  you  rememb.  r  tiie  number  of  the  polls? — A.  Poll  No  I  I  know  was  left  out, 
and  I  think  the  other  \)o\\  was  jioll  No.  3. 

Q.  Please  state  whether  or  not  you  think  the  polls  which  were  excluded  should  have 
be«-n  eonnted. — A.  I  think  they  should  have  been  conuted. 

Q.  Did  you  swear  or  not  to  the  returns  tiled  before  the  returning  board? — A.  I  do 
not  rccollfct. 

Q.  Will  you  please  state  whether  or  not  you  returned  to  the  parish  toobtain  a  blank 
consolidated  statement  with  the  seal  of  court  affixed? — A.  Yes,  I  did. 

Q.  When  you  went  to  New  Orleans  witb  your  first  set  of  returns  did  you  intend  or 
not  to  file  them  before  the  returning  board? — A.  Yes,  I  did. 

Q.  Did  any  one  tell  yon  or  not  that  it  was  necessary  that  you  should  make  a  new 
set  of  returns? — A.  I  do  not  remember. 

Q.  Were  you  told  or  not  at  the  custom-honse  that  it  was  your  duty  as  supervisor  to 
make  a  protest  and  new  returns? — A.  I  do  not  remember  who  told  rae  so,  but  was  told 
so  by  sTtno  one.  . 

Q.  Was  the  statement  made  by  yon  on  the  reportof  men  who  made  afiidavits  before 
the  returning  board  intended  by  you  as  an  affidavit  or  protest  against  the  election  or 
not? — A.  No,  I  did  not  intend  it  to  be  such. 

Q.  Plesise  state  whether  or  not  you  knew  that  your  protest  was  to  be  used  to  throw 
out  the  vote  of  two  polls. — A.  No. 

Q.  Do  you  remember  or  not  who  made  out  your  new  consolidated  returns  ? — A.  I  re- 
member. 

Q.  Who  was  it? — A.  Delahoussaye. 

Q.  Do  you  remember  at  what  time  yon  filed  your  second  returns,  which  were  made 
out  l)y  Delahoussaye? — A.  I  do  not  recollect. 

Q.  State  where  the  new  consolidated  statement  was  made. — A.  In  my  room,  in  the 
citv  of  New  Orleans. 

Q.  Were  the  affidavits  made  by  Diaz,  Marchand,  and  others  ever  read  to  you  or 
not? — A.  I  do  not  recollect. 

J  A  VEAZEY. 


128  DIGEST  OF  ELECTION  CASES. 

Testimony  of  Charles  Guidry,  colored  (p.  1G9,  Record). 

Charles  Guidry,  being  duly  sworn,  deposes  and  savs  as  follows: 

Question.  In  an  affidavit  made  before  one  F.  A.  Woolfiey,  on  the  26th  of  November, 
1876,  in  New  Orleans,  and  signed  by  you,  you  are  made  to  relate  threats  on  the  part 
of  the  Democrats  toward  the  Republicans  at  poll  No.  1  in  tais  pa'ish.  Please  state 
what  you  know  concerning  said  affidavit. — Answer.  I  only  stated  to  Comuiissioner 
Woolfiey  the  following  facts:  That  I  was  a  resident  of  the  parish  of  La  Fayette,  ward 
No. 4;  that  I  had  livecl  in  said  parish  since  fifteen  years;  that  I  was  a  voter  in  said 
ward;  that  I  was  a  member  of  the  parish  central  executive  committee  in  said  parish 
and  a  leader  among  the  Eepublicans;  that  the  white  and  colored  people  in  said  ward 
were  on  good  and  friendly  terms;  that  it  never  had  come  to  my  knowledge  that  there 
existed  any  organization  of  white  men  gotten  up  for  the  purpose  of  intimidating  by 
night  the  colored  people;  that  I  was  on  the  day  of  the  late  election  in  the  town  of 
Vermillionville,  ward  No.  3;  that  in  said  town  everythiug  went  oft'  peaceably,  and 
the  voters  of  both  parties  and  colors  looked  like  a  band  of  brothers,  sitting  and  eat- 
ing at  the  same  table;  that  I  was  there  during  the  whole  day  of  the  election;  that  I 
knew  not  how  many  colored  Democratic  votes  had  been  cast  at  poll  No.  1  in  Carencro, 
perhaps  15;  that  only  one  colored  man  told  me  from  Carencro,  the  Sunday  after  the 
election,  that  his  employer  had  threatened  to  discharge  him  because  he  had  voted  the 
Republican  ticket;  that  that  colored  man  did  vote  a  Republican  ticket  which  I  gave 
him  myself  and  saw  him  vote;  that  with  this  exception  I  knew  of  no  intimidation 
having  been  practiced  either  at  the  poll  in  ward  No.  2  at  C.  Tra ban's,  or  at  poll  No. 
1  in  Carencro  ;  that  I  knew  not  the  names  of  either  of  said  commissiouers  at  either  of 
said  polls.  I  also  warned  the  aforenamed  commissioner  and  his  clerks  and  all  those 
•present  that  I  knew  nothing  more;  that  I  was  on  amicable  and  friendly  terms  with 
the  white  Democrats  of  my  parish,  and  I  wanted  to  be  able  to  face  them  when  I  re- 
turned there. 

Q.  Can  you  read  and  write  or  sign  your  name? — A.  No;  I  cannot. 

his 

CHARLES  -I-  GXIIDRY. 

mark. 

Further  evidence  for  this  parish  is  found  in  the  testimony  of  John 
Clegg  (p.  28,  Record)  and  that  of  fifteen  other  witnesses  (from  p.  1G3  to 
p.  171,  Record). 

The  committee  decide  this  vote  should  stand  as  returned,  with  no 
polls  rejected. 

In  La  Fourche  Parish  the  evidence  goes  to  show  great  fraud  on  the 
part  of  the  Republican  managers  of  the  election.  The  following  testi- 
mony is  from  that  given  by  Hon.  J.  D.  Moore,  state  senator  of  that  dis- 
trict (p.  79,  Record): 

Q.  What  was  the  character  of  the  election  itself  as  held  in  your  parish  ?  Were  all 
the  electors  who  desired  to  vote  the  Democratic  ticket  permitted  to  do  so? — A.  The 
election  in  La  Fourche  was  eminently  a  farce.  It  was  conducted  solely  in  the  interest 
of  one  political  party,  and  no  opportunity  was  given  for  a  fair,  free,  and  full  expression 
of  the  wishes  of  the  voters.  The  polls  in  that  parish  were  located,  or  rather  public 
notice  of  their  location  was  given,  I  think,  forty-eight  or  fifty  hours  previous  to  the 
election.  They  were,  on  the  next  day  or  the  day  after — it  was  the  day  before  the  elec- 
tion— changed,  and  therefore  it  was  impossible  to  communicate  the  notice  of  their 
location  to  the  voters  throughout  the  parish.  The  parish  is  about  ninety  miles  long. 
We  are  without  railroad  or  telegraphic  communications,  and  it  would  have  been  phys- 
ically impossible  to  notify  all  the  voters  where  the  polling-places  were  to  be  after  we 
received  the  notice  of  their  location;  I  mean  it  was  impossible  to  notify  them  of  the 
first  location,  and  it  was  still  more  impossible  after  the  change  was  made.  They  were 
first  located  in  the  negro  quarters  on  the  plantations,  and  they  were  afterward  changed 
to  the  public  road.  These  public  notices  were  only  given,  as  far  as  I  know,  in  the  town 
of  Thibodt-aux.  The  people  in  the  country  knew  nothing  at  all  about  them.  They  had 
to  wait  until  the  day  of  the  election  and  run  generally  hither  and  thither  to  ascertain 
where  the  polls  were  to  be.  In  the  selection  of  the  commissioners,  the  supervisor,  M. 
A.  Ledet,  made  it  a  point  to  select  Democratic  commissioners,  living  at  a  great  distance 
from  the  polls  to  which  they  were  appointed.  For  instance,  Mr.  Allen,  living  imme- 
diately opposite  the  town  of  Thibodoaux,  was  appointed  commissioner  at  a  poll  some 
thirty  or  forty  miles  below,  I  believe.  No  official  notice  was  sent  to  him  at  all,  nor,  I 
believe,  to  any  of  the  commissioners,  and  it  would  have  been  physically  impossible  for 
them  to  have  reached  the  polls  to  wliich  they  had  been  appointed,  even  had  they  been 
notified  and  their  commissions  given  to  them  at  the. time  they  were  handed  to  the 


ACKLEN    VS.    DARRALL.  129 

cliairiuan  of  the  Democratic  committee.  I  woxild  like  to  state  that  it  was  to  the  chair- 
man of  the  Democratic  committee  that  these  commissions  wei'e  given,  and  never  to  the 
commissioners  themselves.  They  were  never  at  any  time  notified  by  Ledet  ini)erson, 
that  I  know  of. 

Q.  Fi-om  your  knowledge  derived  from  your  residence  inyonr  parish  and  from  your 
political  position  there  at  the  time  of  the  election,  what  is  your  opinion  and  belief  as 
to  the  number  of  votes  lost  to  J.  H.  Ackleu  in  the  parish  of  La  Fourche  by  the  action 
of  the  supervisor  of  registration  in  the  matter  of  registration,  in  the  appointment  of 
commissioners,  and  in  the  general  management  of  the  election  of  La  Fourche  ? — A. 
Those  facts,  coupled  with  the  conduct  of  colored  Republicans  with  or  toward  colored 
Democrats,  lost  to  the  Democratic  ticket,  including  J.  H.  Acklen,  I  am  certain  not 
less  than  150  votes,  because  I  do  believe  that  if  the  colored  voter  had  been  permitted 
to  vote  as  he  was  disposed  a  large  number  of  them  would  have  voted  for  the  Demo- 
cratic party  or  abstained  from  voting. 

This  is  fully  corroborated  by  the  testimony  of  the  supervisor  of  regis- 
tratiou  himself,  M.  A.  Ledet,  who  confesses  the  part  he  took  in  the 
fraudulent  registration  and  election,  and  afterward  in  the  alteration  or 
^'  doctoring"  of  the  returns  in  the  committee-room,  whereby,  as  he  states, 
J.  H.  Acklen  was  deprived  of  some  two  hundred  votes. 

The  following  is  part  of  the  testimony  of  said  M.  A.  Ledet  (pp.  73 
and  83,  Kecord) : 

Q.  How  was  the  registration  conducted  in  that  parish  under  your  administration  ? 
Give  a  full  and  detailed  account  of  it. — A.  Well,  I  conducted  the  registration  as  fair 
as  I  could.  Had  I  been  left  alone  I  could  have  done  it  fairly,  but  on  account  of  the 
pressure  that  was  brought  to  bear  upon  me  by  the  Republican  campaign  committee,  I 
was  compelled  to  go  according  to  their  dictation.  In  the  registration  I  took  all  the 
advantage  I  could.  I  suppose  that  I  neglected  the  registration  of  the  white  voters  of 
that  parish  to  the  extent  of  about  25  or  30,  probably.  I  mean  white  Democratic 
voters.  There  were  about  that  uumber  that  were  prevented  from  registering.  This 
was  done  by  my  being  advised,  of  course,  by  the  campaign  committee  to  not  remain 
long  at  one  place,  and  to  dodge  about.  I  rejected,  as  far  as  I  can  remember,  some  6 
or  8  that  I  thought  were  not  of  age.     That  is  about  all  about  the  registration. 

Q.  Were  you  not  appointed  supervisor  with  the  distinct  understanding  that  you 
were  to  carry  the  parish  for  the  Republicans  at  all  hazards  ? — That  was  the  under- 
standing, sir.  Those  were  the  questions  put  to  me  by  the  campaign  committee  when 
I  received  the  appointment. 

Q.  How  many  votes  do  you  think  were  lost  J.  H.  Acklen  by  this  peculiar  mode  of 
registration  alone  ? — A.  Well,  I  suppose  about  25  or  30. 

Q.  That  is,  by  the  registration  ? — A.  Yes,  sir. 

Q.  Now,  Mr.  Ledet,  how  about  the  election  ?  How,  in  reference  to  the  placing  of 
the  polls,  was  the  election  conducted  ? — A.  Well,  in  fixing  the  polls,  I  did  it  together 
with  the  campaign  committee,  and  they  insisted  upon  my  locating  the  polls  in  the 
manqer  in  which  I  did. 

Q.  Were  those  polls  not  so  placed  as  to  prevent  many  Democrats  from  voting  by  a 
neglect  of  a  proi)er  time  of  notification? — A.  Well,  yes,  sir;  and  it  being  in  the  quar- 
ters. 

Q.  Were  not  colored  Democrats  prevented  from  voting  the  Democratic  ticket  by  the 
situation  of  the  polls  in  the  quarters,  where  they  were  surrounded  entirely  by  their 
own  color,  who  were  strongly  Republican  ? — A,  Well,  to  my  knowledge  there  must  be 
in  La  Fourche  eighteen  or  twenty  Democratic  negroes,  and  they  were  rather  afraid. 
In  fact,  they  did  not  vote.  They  belonged  to  the  Democratic-Conservative  club  in 
Thibodeaux,  and  they  were  really  prevented  from  voting  by  their  own  race,  because 
I  have  myself  heard  colored  speakers  in  the  parish  say  on  the  stand  that  any  nigger 
that  would  vote  the  Democratic  ticket,  they  ought  to  get  together  and  not  only  kill 
him,  not  only  that  he  deserv-ed  to  be  killed,  but  massacred  and  burnt  up,  I  remember 
a  man  by  the  name  of  Cook  making  that  speech  at  Stoddard  school-house  a  couple  of 
weeks  previous  to  the  election. 

Q.  i6-,  Ledet,  is  it  not  a  fact  that  at  all  the  polls  in  the  parish  the  Republicans  had 
men  stationed  whose  special  business  it  was  to  examine  the  tickets  of  the  colored 
voters  as  they  came  up,  to  see  that  they  had  a  straight  Republican  ticket  and  prevent 
them  from  having  any  other  ? — A.  Yes,  sir ;  there  were  at  each  poll  some  four  or  five 
constables  who  were  appointed  for  that  purpose  by  me  as  supervisor. 

Q.  What  number  of  votes  were  lost  to  J.  H.  Acklen  by  the  failure  to  place  poll  No, 
17  where  it  was  ordered  to  be  held,  at  the  Allen  warehouse,  and  which  was  really 
held  back  in  some  negro  quarters  about  three  miles  from  the  road  f — A.  Well,  the 
commissioner  at  that  poll  bad  instructions  to  hold  the  election  on  the  road-side  at  the 
warehouse,  and  he  disobeyed  orders  and  went  back  there.     He  told  me  himself  affcer- 

B.  Mis.  oS 9 


130  DIGEST  OF  ELECTION  CASES. 

ward  that  there  were  about  fifteen  or  eighteen  Democrats  that  would  not  vote  on  ac- 
count of  the  poll  being  there,  because  Mr.  E.  H.  Allen,  who  was  the  OAvner  of  the 
place,  protested  against  holding  the  election  there  and  disgusted  those  men  from  vot- 
ing there.  That  information  I  had  from  the  commissioner  himself.  •!  know  myself 
that  on  that  place  there  were  at  least  fifteen  or  eighteen  white  men  working  there 
nearly  all  the  year  round. 

Q.  Had  there  been  under  the  law  a  fair  registration  and  a  fair  election  held  in  the 
parish  of  La  Fourche,  giving  neither  party  an  advantage,  and  permitting  the  negroes 
to  vote  as  they  chose,  and  giving  the  facilities  for  voting  which  should  have  been 
given  to  the  white  Democrats,  what  is  your  opinion  that  the  majority  would  have 
been  for  J.  H.  Acklen  in  the  parish? — A.  Well,  in  my  opinion,  1  concede  La  Fourche 
to  be  from  one  hundred  and  fifty  to  two  hundred  Democratic  majority  if  the  polls 
were  located  properly  and  the  voters  were  permitted  to  vote  as  they  wanted  to  ;  that 
is,  by  placing  polls  convenient  for  them  to  get  at  them  and  the  commissioners  being 
at  each  poll. 

Q.  Then  I  understand  that  by  this  unlawful  registration  and  election  J.  H.  Acklen 
has  lost  about  two  hundred  votes  in  the  parish  of  La  Fourche  f — A.  Yes,  sir. 

Q.  Mr.  Ledet,  were  you  at  any  time  previous  to  the  election  presented  with  a  certain 
list  of  men  deceased,  and  minors,  and  convicts,  and  felons,  aud  absentees,  &c.,  by  one 
L.  O.  Moreau,  Democratic  United  States  supervisor,  to  have  the  names  of  those  parties 
stricken  from  the  rolls  of  the  registration  books? — A.  Yes,  sir. 

Q.  Did  you  act  upon  this  list  to  the  full  extent  of  the  names  presented  to  you? — A. 
I  erased  a  few  of  them,  not  all. 

Q.  Do  you  not  know  that  many  names  thereon  that  should  have  been  erased  you 
failed  to  erase  ? — A.  Well,  I  suppose  there  were  some. 

Q.  In  the  consolidated  return  made  out  and  filed  in  the  secretary  of  state's  oflSce, 
was  any  notice  taken  of  that  fact  that  you  have  just  stated  ? — A.  No,  sir ;  not  that  I 
know  of. 

Q.  Who  made  out  this  return?  Did  you  make  it  out  in  person? — A.  Jules  Sevignes 
made  it  out.  He  was  a  candidate  for  the  house  of  representatives,  and  he  made  out 
the  return  in  the  committee-room. 

Q.  Is  this  the  original  which  was  made  out  by  him?  (Shown  original  consolidated 
return  on  file  in  the  office  of  the  secretary  of  state.) — A.  This  original  consolidated 
return  was  made  out  in  the  committee-room  in  La  Fourche.  This  other  one  (refer- 
ring to  certified  copy  of  the  said  original)  was  made  in  New  Orleans. 

Q.  Who  made  out  the  second  one? — A.  Sevignes  copied  it. 

Q.  Is  all  the  document  in  Sevignes's  handwriting  except  your  signature  there? — A. 
Yes,  sir ;  the  whole  of  it  is  in  his  handwriting,  with  the  exception  of  my  signature. 

Q.  Did  Sevignes  return  himself  elected  on  this  consolidated  return  ? — A.  Yes,  sir. 

(Mr.  Merchant  objected.) 

Q.  When  you  signed  this  return  as  made  out  by  said  Sevignes,  had  you  carefully 
examined  it  to  see  whether  it  was  correct  ? 

(Mr.  Merchant  objected.) 

A.  No.  sir. 

Q.  Did  you  find  out  afterward  that  the  aforesaid  returns,  as  signed  by  you,  were 
incorrect  ?  • 

(Mr.  Merchant  objected.) 

A.  Well,  yes,  sir.  I  wiU  tell  you  how  these  returns  were  made  out :  In  the  first 
place,  every  statement  of  votes  and  tally-sheet  that  were  sent  out  to  the  difli'erent 
polls  was  made  out  in  .pencil ;  and  when  they  were  brought  to  me  the  return  was 
made  and  the  tally-sheets  were  copied  over  in  ink.  That  is  how  the  first  copy  was 
made.     The  tally-sheets  were  doctored  in  the  committee-room, 

Q.  Then,  in  reality,  you  did  not  yourself  make  out  the  return  that  came  from  the 
parish  of  La  Fourche  and  that  was  submitted  to  the  returning  board  ? 

(Mr.  Merchant  objected. ) 

A.  No,  sir. 

Q.  The  entire  returns  as  made  and  filed  with  the  board  were  made  out  by  the  afore- 
said Sevignes? 

(Mr.  Merchant  objected.) 

A.  The  statement  of  votes,  or  rather  the  consolidated  statement,  was.     Now,  there 
were  two  or  three  others  that  helped  me  to  copy  the  tally-lists.     There  were  some  fiv 
or  six  of  them. 

Q.  To  what  extent  now  have  you  ascertained  that  the  return  from  your  parish,  as 
made  out  by  the  aforesaid  Sevignes,  is  incorrect  ?    In  other  words,  how  many  votes 
were  lost  to  J.  H.  Acklen  by  this  return  which  should  have  been  credited  to  him  ? 
(Mr.  Merchant  objected.) 

A.  According  to  the  statement  that  I  have  already  made,  I  think  you  lost  some  two 
hundred  votes. 


ACKLEN    VS.    DARRALL.  131 

Cross-examination  by  Mr.  Merchant  : 

(Mr.  Merchant  said  he  cross-examined  this  witness  with  reservation  of  all  legal 
objections  to  his  testimony.) 

Q.  Mr.  Ledet,  you  signed  this  return  mentioned  by  you  ? — A.  Yes,  sir. 

Q.  Did  you  compare  those  returns  with  the  commissioner  returns  to  see  tliat  they 
were  correct  before  signing  them  ? — A.  Well,  no,  sir;  they  were  not  compared,  because 
the  commissioners'  returns  were  doctored  or  changed  in  the  committee-room,  as  I  have 
already  stated.  All  the  statements  of  votes  and  all  the  commissioners'  returns  were 
made  pretty  much  in  pencil. 

Q.  How  do  you  know  that  fact  ? — A.  Because  I  was  there  and  saw  it. 

Further  evidence  sustaining  the  foregoing  is  found  in  the  testimony 
of  M.  W.  Billier,  p.  132,  Record;  A.  Rovira,  pp.  132, 137,  Record;  H.  H. 
Michelet,  p.  39,  Record;  Albert  Brooks,  p.  134,  Record;  E.  A.  O'Sulli- 
ran,  p.  137,  Record;  O.  B.  Morgan,  p.  40,  Record;  T.  Chatton  Davis,  p. 
31,  Record;  I.  O.  Landry,  p.  128,  Record;  Robert  Poindexter,  p.  30, 
Record. 

In  the  evidence  offered  by  the  contestee  m  the  testimony  of  Tayler 
Beattie,  p.  242,  Record,  Charles  Gaud^,  p.  181,  Record,  and  Jules 
Sevignes,  p.l84.  Record,  many  of  the  statements  of  the  witnesses  on  behalf 
of  the  contestant  are  qualified ;  but  it  is  the  opinion  of  the  committee 
that  the  facts  educed  in  this  parish  show  that  contestant  was  deprived  of 
a  large  number  of  votes,  and  that  the  returns  as  rendered,  viz,  J.  H. 
Acklen  2,086,  C.  B.  Darrall  2,015,  do  not  show  all  the  votes  which  the 
contestant  would  have  received  had  the  election  and  registration  been 
fairly  conducted.  But  this  committee  are  without  any  exa<jt  figures 
upon  which  to  base  any  change  of  the  vote  for  the  contestant,  although 
this  Republican  witness  declares  that  Acklen  was  defrauded  of  over  200 
votes,  and  so  let  that  vote  remain  as  returned. 

The  evidence,  however,  goes  to  show  that  the  vote  of  poll  17,  where 
86  Republican  votes  were  cast  and  not  one  Democratic  vote,  which  was 
held  at  a  place  unauthorized  by  law,  and  about  one  mile  from  the  place 
legally  appointed,  with  no  Democratic  commissioner  present,  and  appears 
to  have  been  so  held  for  the  express  purpose  of  preventing  any  Demo 
crats  from  voting  there,  should  be  rejected  and  not  counted.  Without 
quoting  the  testimony,  this  committee,  after  a  careful  examination,  feel 
they  are  correct  in  adopting  the  language  of  the  supreme  court  of 
Louisiana,  which  in  rendering  a  decision  on  this  pull  said  (p.  9,  Record) : 

The  reason  of  the  rule  invoked  is,  however,  very  manifest,  and  the  circumstances  at- 
tending the  removal  of  poll  17  from  the  place  fixed  by  law  to  another  and  unauthor- 
ized place  make  it  more  the  manifest.  The  object  of  the  change  is  proved  to  have  been 
to  take  unlawful  advantage  of  political  adversaries;  in  otherwords,  to  defraud  the  law 
and  prevent  a  fair,  full,  and  independent  expression  of  the  popular  will.  Courts  can- 
not lend  their  aid  to  such  a  purpose.  It  was  no  more  legal  to  hold  an  election  where 
it  was  held  and  returned,  as  that  from  poll  17,  than  it  was  to  hold  it  at  any  other  time 
than  that  fixed  by  law.  It  is  well  settled  that  cannot  be  done.  There  was  no  election 
held  at  poll  17  in  the  parish  of  La  Fourche  on  the  7th  of  November  last.  We  have, 
been  unable  to  find  and  have  been  referred  to  no  cjise  where  votes  cast  under  similar  cir- 
cumstances have  been  counted  to  determine  an  election.  Our  conclusion,  therefore,  is 
that  what  purports  to  be  the  return  of  this  poll  should  not  be  counted  or  considered  in 
determining  the  result  of  the  election. 

Thus  the  vote  for  this  parish  of  La  Fourche  is  determined  by  this 
committee  to  properly  be,  exclusive  of  the  vote  of  poll  17,  rejected : 

J.  H.  Acklen 2,088 

C.  B.  Darrall 1,929 

SAINT  MAKTIN'S. 

Pending  the  printing  of  the  Record  in  this  case,  the  contestee  appeared 
before  the  committee  and  claimed  that  some  of  his  testimony  taken  in 


132  DIGEST  OF  ELECTION  CASES. 

this  parish  was  mislaid,  and  requested  twenty  days  to  retake  same.  To 
avoid  delay  an  agreement  then  was  entered  into  between  the  contestant 
and  contestee  (p.  283,  Kecord)  ])redicated  upon  the  supposed  loss  of  said 
testimony.  The  next  day  the  testimony  was  found  in  the  hands  of  the 
Public  Printer,  where,  by  accident,  it  had  gone  with  contestant's  papers, 
and  had  been  printed ;  it  is  found  on  pp.  153, 154,  155,  and  156,  Record. 
By  this  agreement  the  vote  of  this  parish  is  declared  to  be : 

J.  H.  Ackleu 1,027 

€.  B,  Darrall 1,095 

These  returns  the  present  board  of  canvassers  refused  to  canvass, 
alleging  (p.  13,  Eecord)  that  the  same  had  been  tampered  with  or 
forged.  The  evidence  of  contestee,  pp.  153,  154,  155,  and  156,  Record, 
does  not  touch  on  this  point  at  all,  but  inasmuch  as  the  general  result 
is  not  affected  by  the  above  vote  as  agreed  upon,  and  inasmuch  as  con- 
testee strenuously  insists  upon  the  agreement,  the  committee,  though  of 
opinion  that  said  agreement  was  superseded  by  the  subseipient  dis- 
covery of  the  evidence,  are  inclined  not  to  disturb  it. 

IBERVILLE. 

In  the  parish  of  Iberville  contestant  relies  upon  a  recount  of  the  bal- 
lots had  under  an  order  of  court  on  March  6, 1877.  This  was  four  months 
after  the  date  of  the  election. 

Before  entering  upon  an  examination  in  detail  of  the  features  and  cir- 
cumstances of  this  recount,  your  committee  would  remark  that  they 
were  impressed  with  the  fact  that  the  law  regards  with  jealousy  and 
suspicion  recounts  of  ballots,  and  is  slow  to  sanction  any  change  from 
results  originally  declared  to  results  effected  by  such  recounts. 

The  rules  of  law  governing  recounts  of  ballots  are  plain  and  positive. 
Before  courts  or  legislative  bodies  will  give  weight  to  results  of  recounts 
of  ballots,  it  must  be  shown  absolutely  that  the  ballot-boxes  containing 
such  ballots  had  been  safely  kept ;  that  the  ballots  were  undoubtedly 
the  identical  ballots  cast  at  the  election ;  and  when  these  facts  are  estab- 
lished beyond  all  reasonable  doubt,  then  full  force  and  effect  are  given 
to  the  developments  of  the  recount.  After  full  examination  of  the  evi- 
dence your  committee  found  no  difficulty  whatever  in  arriving  at  the 
conclusion  that  in  this  case  the  ballot-boxes  had  been  jjreserved  ;  that 
they  had  never  been  tampered  with,  and  that  the  ballots  found  in  them 
were  the  identical  ballots  cast  at  the  November  election. 

Another  objection  to  the  consideration  of  the  recount  urged  by  con- 
testee is  that  the  time  between  the  election  and  the  recount  was  some 
four  months,  and  that  the  time  for  the  preservation  of  the  boxes  by  the 
clerk,  under  the  laws  of  Louisiana,  had  expired.  Section  13  provided 
in  substance  that  the  clerk  of  the  court  should  safely  keep  the  ballot- 
boxes,  after  delivery  to  him  by  the  officers  of  election,  until  after  the 
next  regular  term  of  the  district  or  criminal  court  for  said  parish.  Con- 
testee urges  that  the  next  regular  term  of  the  district  or  criminal  court 
for  the  parish  of  Iberville  was  in  January,  1877,  two  months  after  the 
election,  and  that  after  the  lapse  of  said  term,  the  law  no  longer  obligat- 
ing the  clerk  to  safely  keep  the  ballot-boxes,  a  recount  of  such  boxes  or 
their  contents  was  illegal.  The  facts  are  that  the  time  for  holding  the 
term  of  the  regular  district  court  was  in  January,  but  no  court  was  held. 
There  were  two  claimants  to  the  office  of  district  judge.  One  oi'  these 
claimants  (and  the  one,  too,  who  was  afterward  declared  not  to  be  the 
judge)  went  through  the  form  of  holding  court;  but  no  business  what- 
ever was  transacted,  and  no  regular  term  of  court  was  held  until  the 


ACKLEN   VS.    DARRALL.  133 

month  of  April.  But  granting  the  fact  that  the  term  of  court  had  elapsed 
between  the  time  of  the  election  and  the  recount,  would  that  fact  abridge 
the  power  of  Congress  in  determining  the  rights  of  claimants  to  seats  in 
its  body  to  take  the  ballot-boxes,  no  matter  what  might  be  the  lapse  of 
time;  and  if  satisfied  that  the  boxes  had  not  been  tampered  with,  and 
that  the  ballots  contained  in  them  were  the  identical  ballots  cast  at  the 
election,  to  open  the  boxes,  count  the  ballots,  and  decide  in  accordance 
with  the  result  of  said  recount?  But  the  committee  find,  after  thorough 
examination,  that  contestant  could  not  have  obtained  the  recount  at  a  date 
earlier  than  it  was  ettected.  The  election  took  place  November  7,  but 
the  Wells-Anderson  returning  board  did  not  declare  any  result  until 
nearly  two  months  afterward.  After  that  declaration  the  contestant 
gave  notice  of  contest,  which  was  given  within  the  time  required  by  law. 
During  this  time,  and  until  the  Mcholls  gov^ernment  was  established  in 
Louisiana,  the  state  of  affairs  was  such  that  few  or  no  courts  transacted 
business,  and  it  was  not  until  the  month  of  February  that  the  board  of 
canvassers  under  the  Nicholls  government  declared  any  results.  And 
thus  awaiting  final  action  of  these  two  boards  of  canvassers  were  any 
proceedings  by  contestant  delayed;  and,  further,  the  answer  of  the  con- 
testee  to  notice  of  contest  bears  date  "Washington,  D.  C,  January  20, 
1877,"  and  appears  to  have  been  served  some  time  thereafter.  Thus  the 
recount?  which  took  place  early  within  the  first  forty  days,  granted  the 
contestant  by  law,  was  eflfected  at  as  early  a  date  as  the  case  permitted. 

The  proceedings  of  this  recount  (on  pp.  G3, 64,  and  65,  Record)  appear 
to  this  committee  to  have  been  even  unusually  formal,  and  perfectly 
just  to  both  parties,  who  were  present;  the  one  in  person,  the  other  by 
attorney.  Xor  is  any  evidence  offered  or  claim  made  bj"  contestee  that 
this  recount  was  not  fairly  conducted  as  between  the  parties  in  contest; 
that  the  judge,  a  Republican,  presiding,  did  not  act  in  a  fair  and  impar- 
tial manner,  and  that  the  recount  was  not  duly  attested  and  authenti- 
cated ;  all  of  which  facts  appear  affirmatively  in  the  evidence  offered  by 
contestant.  The  law  directing  the  preservation  of  the  ballot-boxes  and 
ballots  for  such  recounts  is  found  in  section  13,  act  1872,  election  law  of 
Louisiana;  and  that  this  law  had  been  complied  with  is  shown  in  the 
testimony. 

Authorit^^  for  recounts  in  such  cases  is  found  in  McOrary,  section  280; 
2  Parsons,  599;  Thompson  vs.  Ewing,  1  Brewst.,  192;  2  Brewst.,  2;  1 
Brewst.,  67  and  69;  2  Parsons,  537,  548,  and  553;  65  Penn.  St.  R.,  36; 
1  Brewst.,  162;  (3ooley's  Const.  Lim.,  p.  625. 

That  the  contestant  specified  particularly  the  grounds  upon  which  he 
relied  is  apparent  from  the  pleadings.  That  the  proof  as  to  an  incor- 
rect original  count,  and  the  failure  to  count  votes  which  witnesses  swore 
to  having  voted,  was  fully  established  before  the  boxes  were  ordered  to 
be  opened  by  the  court,  is  likewise  shown. 

Many  of  the  commissioners  of  election  were  called  in  previous  to  the 
opening  of  the  boxes  at  said  recount,  to  identify  the  seals  and  their 
signatures  as  being  intact,  and  except  at  i>oll  7,  where  the  box  had 
been  sealed  but  not  signed,  they  did  so  identify  them;  that  the  former 
and  present  clerk  of  court,  in  whose  possession  the  law  placed  these 
boxes  for  safe-keeping,  were  also  sworn,  and  testified  that  they  had 
been  safely  preserved,  is  also  shown.  James  Crowell,  parish  judge, 
former  clerk,  pp.  59  and  115  Record,  says : 

Q.  Were  those  boxes  safely  iu  your  possession,  Judge  Crowell,  until  you  delivered 
tliem  to  your  successor  ? — A.  Yes,  sir. 

Q.  Would  it  have  been  possible  for  any  one  to  have  tampered  with  those  boxes 
without  your  knowinj^  it? — A.  I  think  it  would  have  been  impossible. 


134  DIGEST    OF   ELECTION    CASES. 

Q.  Were  not  those  boxes  in  your  office  with  their  faces  or  fronts  turned  out,  expos- 
ing the  seals  in  such  a  way  that  had  they  been  interfered  with  at  any  time  the  fact 
would  have  been  noticeable  ? — A.  Well,  as  they  came  in  I  placed  them  with  the  seals 
out,  in  the  main  office,  where  I  sat  myself,  and  I  took  the  seals  and  faced  them  outside 
between  the  end  and  the  records  of  the  parish  court  there. 

Q.  Are  the  fastenings  of  this  court-house  secure? — A.  Yes,  sir. 

Q.  Would  it  be  possible  for  any  one  to  come  in  here  at  night  or  at  any  other  time 
without  your  being  aware  of  it? — A.  Not  without  breaking  the  windows. 

Q.  You  were  present  at  the  time  the  commissioners  examined  their  boxes  and  iden- 
tified them  as  being  in  the  same  condition  as  when  delivered  to  you? — A.  Yes,  sir. 

Q.  You  were  also  present  at  the  recount  of  these  votes? — A.  Yes,  sir. 

Q.  Were  those  boxes  at  the  recount  in-thesame  condition  as  when  they  were  deliv- 
ered to  you  ? — A.  Yes,  sir;  the  same  as  when  I  got  them. 

J.  A.  Landry,  deputy  clerk  of  court,  p.  62  Record,  says : 

Q.  Mr.  Landry,  you  have  access  to  the  court-house  at  all  hours? — A.  Yes,  sir:  I 
have  a  key  to  the  clerk's  office,  and  previously  I  had  a  key  to  the  sheriiPs  office.  I 
have  access  to  the  sheriff's  office,  I  believe,  since  the  9th  of  January  last. 

Q.  Have  you  ever  at  any  time  left  the  court-house  or  the  clerk's  office  open,  or  in 
such  a  way  that  any  one  could  come  in  here  and  tamper  with  these  ballot-boxes  since 
they  have  been  in  the  clerk's  office  ? — A.  Well,  no,  sir ;  I  never  have.  Whenever  I  was 
absent  or  went  away,  the  cleik  himself  was  here.  I  have  never  left  it  long  enough  to 
know  that  any  one  could  tamper  with  them  unless  I  should  have  caught  them  at  it. 

Q.  Then  can  you  testify  that  to  the  best  of  your  knowledge  and  belief  whUe  you 
have  been  here  these  boxes  have  been  safe? — A.  Yes, sir;  I  have  always  seen  them 
there,  and  to  my  knowledge  they  have  not  been  tampered  with. 

Q.  You  see  the  boxes  every  day  or  two? — A.  Yes,  sir. 

Q.  If  they  had  been  tampered  with  over  night  or  at  any  time,  would  that  fact  have 
been  noticed  by  you,  do  you  think? — A.  Yes,  sir;  so  far  as  I  know  the  boxes  have 
never  been  tampered  with  so  far  as  taking  any  papers  out  or  adding  any  papers  to 
them,  or  anything  of  that  kind. 

C  H.  Gordon,  clerk  of  court,  pp.  66  to  110  Eecord,  says : 

Q.  You  are,  at  present,  clerk  of  the  parish  court  ? — A.  Yes,  sir. 

Q.  You  are,  at  present,  in  custody  of  the  ballot-boxes  in  this  court? — A.  Yes,  sir. 

Q.  Who  delivered  them  to  yout — A.  My  predecessor.  Judge  Crowell. 

Q.  Have  those  boxes  been  in  your  possession  ever  since  they  were  delivered  to  you 
up  to  the  present  time  ? — ^A.  Yes,  sir. 

Q.  Can  you  swear  positively,  beyond  all  question,  that,  to  the  best  of  your  knowledge, 
these  boxes  have  been  safely  in  your  keeping  up  to  the  present  time  ? — A.  Yes,  sir. 

Q.  Are  the  fastenings  of  the  clerk's  office  here  secure? — A.  Yes,  sir.  Always,  when 
we  go  away  from  here  at  night,  we  fasten  these  windows  on  the  outside,  and  when 
they  slam  they  cannot  be  opened  from  the  outside  at  all. 

Q.  If  there  had  been  any  entrance  made  into  the  building  during  your  absence  from 
it,  could  you  have  detected  it  ? — A.  Yes,  sir.  They  would  have  had  to  break  the  lock 
or  pulled  the  wedge  from  the  fastenings  of  the  windows.  I  am  here  during  the  day 
all  the  time. 

Q.  From  whom  did  you  receive  the  ballot-boxes? — ^A.  From  Judge  Crowell,  my 
predecessor. 

Q.  Can  you  swear  positively,  to  the  best  of  your  knowledge,  that  while  those  boxes 
have  been  in  your  possession  they  have  not  been  tampered  with  ? — A.  Yes,  sir ;  I  can 
swear  positively  that  while  those  boxes  have  been  in  my  possession  they  have  never 
been  touched  at  all.  They  were  handed  over  to  me  when  the  judge  vacated  the  office, 
and  they  were  in  that  other  room  piled  up  from  the  floor,  one  on  top  of  the  other;  and 
I  moved  them  from  there  and  put  them  under  this  table,  which  then  stood  by  that 
window,  and  after  that  I  cleaned  up  here  a  little  bit,  and  I  moved  this  table  over  here 
and  put  the  boxes  where  you  find  them  now,  on  top  of  the  table  I  handled  them 
around,  and  I  might  have  handled  them  carefully  if  I  had  thought  there  was  going  to 
be  a  contested  electiou  case ;  but,  not  knowing  anj'thing  about  it,  I  did  not  pay  much 
attention.     I  might  have  left  them  where  they  were. 

Q.  Were  not  those  boxes  piled  up  in  the  room  with  their  seals  facing  outward,  so 
that  they  could  be  seen  every  day  as  you  came  in  ? — A.  Yes,  sir ;  they  were  turned 
right  around  the  reverse  of  the  way  thej'  are  now  in  that  room  on  that  other  side. 

Q.  If  those  boxes  had  at  any  time  been  tampered  with  over  night,  could  you,  on  the 
next  day  when  j'ou  came  io,  have  noticed  that  fact  from  the  dinerence  in  the  papers 
and  in  the  seals? — A.  Easily,  sir.  1  would  not  only  notice  the  fact  of  the  boxes  hav- 
ing been  tampered  with,  but  I  would  notice  the  fact  that  some  of  these  windows  and 
doors  had  been  tampered  with  in  order  to  get  in  here. 

Q.  Would  it  be  possible  for  any  one  to  eut«r  this  office  where  these  boxes  were  kept 
without  leaving  some  traces  f — A.  No,  sir. 


ACKLEN    VS.    DARRA.LL.  135 

Q.  Are  the  fastenings  of  the  windows  and  the  doors  secure  ? — A.  Yes,  sir. 

Q.  Are  you  or  some  of  your  deputies  here  always  during  the  day? — A.  Yes,  sir;  I 
am  here  nearly  all  day  from  the  time  I  come  here  in  tlie  morning.  I  get  here  about  7 
o'clock,  and  go  to  dinner,  and  I  am  back  here  about  1  o'clock,  and  I  stay  until  I  lock 
it  up  myself  at  night. 

Additional  testimony  of  the  commissioners  themselves,  showing  con- 
clusively that  the  ballot-boxes,  when  brought  forward  for  the  purjjose 
of  the  recount,  had  not  been  tampered  with,  will  be  noticed  further 
when  each  poll  is  taken  up  separately.  Suffice  it  to  say  that  the  evi- 
dence is  conchisive  that  the  ballot-boxes  had  been  safely  kept,  and  had 
not  been  tampered  with  between  the  time  of  the  election  and  that  of  the 
lecount. 

Such  being  the  case,  the  presumption  follows  that  the  ballots  found 
in  the  boxes  when  the  recount  was  made  were  the  identical  ballots  cast 
at  the  election.  The  peculiar  character  of  the  case,  and  the  fact  that  in 
the  parish  of  Iberville  the  party  of  which  contestee  was  the  nominee 
was  largely  in  excess  of  the  other  party,  render  it  necessary  for  the 
committee  to  notice  at  some  length  the  history  of  the  election  in  that 
parish,  and  to  set  forth  the  causes  which  operated  to  deprive  contestee 
of  his  party  strength.  It  is  true  that  Iberville  is  largely  Republican, 
but  the  evidence  is  couslusive  that  the  leaders  of  the  Republican  party 
in  Iberville,  as  well  as  some  of  the  most  prominent  Republicans  in  the 
State,  were  opposed  to  the  election  of  contestee,  and  combined  to  defeat 
him.  The  testimony  of  W.  W.  Wharton,  pp.  33,  121,  Record ;  Wailes, 
R.,  p.  116 ;  Gordon,  R.,  p.  108;  Robertson,  R.,  p.  103;  Holmes,  R.,  p. 
113 ;  Ennis,  R.,  p.  90 ;  A.  J.  Gordon,  R.,  p.  96 ;  Loud,  R.,  p.  67 ;  Bess, 
R.,  p.  97 ;  Commager,  R.,  p.  99 ;  Hunter,  R.,  p.  90 ;  Barnes,  R.,  p.  93 ; 
Deslonde,  R.,  p.  43 ;  Roberts,  R.,  p.  84 ;  Weightman,  R.,  p.  85,  as  well 
as  that  of  others,  shows  very  strong  opposition  to  the  election  of  the 
contestee  in  Iberville  Parish  on  the  part  of  the  Republicans  themselves. 

The  following,  from  the  testimony  of  Hon.  W.  W.  Wharton,  pp.  33, 121, 
Record,  sheds  much  light  upon  the  manner  in  which  this  fight  within 
the  Republican  ranks  against  the  contestee  was  conducted : 

Q.  Then,  what  was  the  decision  and  determination  among  your  friends  and  yourself 
in  reference  to  Dr.  Darrall's  defeat  ? — ^A.  The  determination  was  come  too  early  in  the 
vear  that  if  I  would  take  hold  of  the  canvass  here  and  organize  the  party  thoroughly, 
1  should  be  supported  for  the  senate  throughout.  When  it  was  ascertained  that  Wake- 
field was  a  candidate,  and  information  was  given  that  Dr.  Darrall  was  supporting  Mr. 
Wakefield,  and  the  conduct  of  Dr.  Darrall  appeared  to  me  conclusive  that  he  was  sup- 
porting Wakefield  and  giving  me  merely  a  negative  assistance  in  this  parish,  whilst 
opposing  me  elsewhere,  I  called  my  friends  together  to  discuss  the  matter.  We  dis- 
cussed it  many  times,  and  we  came  to  the  conclusion  that  we  would  hold  the  matter 
over  the  doctor's  head ;  that  we  would  not  indorse  him  in  the  proceedings  of  our  con- 
vention ;  that  we  would  hold  it  over,  him  and  that  I  would  talk  to  him  and  notify  him, 
and  that  some  of  my  friends  would  talk  to  him,  and  sound  him,  and  ascertain  his  views 
in  reference  to  the  matter ;  and  that  in  case  it  was  necessary  to  proceed  to  extreme 
measures  to  force  him  to  support  me,  the  regular  nominee,  we  should  do  so.  Most  of 
my  personal  friends  were  very  active  in  the  matter.  Others  of  my  political  friends 
were  negatively  acquiescent  about  it ;  but  the  entire  direction  of  the  matter  in  this 
parish  was  in  my  hands,  as  far  as  the  canvass  was  concerned. 

Q.  Was  not  the  electtion  also  in  your  hands,  in  so  far  as  regards  the  printing  of  the 
tickets,  the  general  management  of  affairs,  the  distribution  of  the  tickets,  &c.  f — 
A.  After  the  preliminary  organization  of  the  parish,  and  after  we  had  secured  the 
parish  committee  and  the  parish  convention,  I  was  appointed  by  the  committee  as 
chairman  of  the  campaign  committee  of  the  parish,  with  power  to  conduct  the  cau- 
va.ss,  arrange  meetings,  disburse  funds,  print  tickets,  and  do  everything  else  in  refer- 
ence to  the  matter.  I  was  appointed  at.  a  meeting  of  the  committee.  I  believe  the 
•vice-president,  Judge  Crowell,  was  in  the  chair  at  the  time. 

Q.  What  were  your  reasons  for  keepiug  the  matter  a  secret  in  the  parish  of  Iber- 
ville to  a  certain  extent  excejit  as  among  your  particular  and  personal  friends  ? — A. 
For  this  reason,  that  I  wanted  to  do  two  things,  to  be  elected  myself  and  to  beat  Dr. 
Darrall.     To  do  this  it  was  necessary  to  avoid  any  handle  that  the  opposition  to  myself 


136  DIGEST    OF   ELECTION    CASES. 

might  take  np.  I  was  opposed  very  bitterly  here  by  Senator  Allain  and  his  friends 
who  would  have  seized  upon  anything  of  the  kind  as  a  weapon  to  light  me  with.  Dur- 
ing the  day  of  an  election  it  is  very  easy  to  get  up  quite  a  disturbance  by  anything 
of  that  kind.  On  consulting  with  my  friends,  we  agreed  that  the  leaders  should  be 
thoroughly  conversant  with  the  matter  themselves,  sound  their  own  leading  men, 
have  it  understood,  and  carry  it  out  that  way.  In  certain  localities  of  the  parish 
where  the  opposition  to  me  was  strongest,  we  would  proceed  quietly  and  do  but  little. 

Q.  Did  you  yourself  bring  up  from  Xew  Orleans  those  tickets  that  were  priuted 
with  Darrall's  name  on  them,  others  that  had  the  name  of  J.  H.  Acklen  on  them, 
and  others  with  the  name  of  the  Congressman  left  in  blank  f — A .  Yes,  sir ;  I  had  them 
printed  myself  and  brought  them  here. 

Q.  Where  did  you  have  them  printed  ? — A,  In  New  Orleans,  by  a  man  by  the  name 
of  Hopkins,  on  the  comer  of  Camp  and  Common  streets,  in  the  Storey  Building. 

Q.  Did  you  distribute  all  those  tickets  yourself? — A.  All  that  I  brought  up,  or 
nearly  all ;  there  were  a  couple  of  hundred,  perhaps,  that  I  did  not  distribute.  I 
gave  out  every  ticket  myself. 

Q.  Give  the  names  of  some  of  those  men  that  you  distributed  tickets  to. — A.  I  will 
give  the  names  of  all  of  them.  I  will  state,  in  the  first  place,  that  I  gave  to  no  one 
only  one  kind  of  ticket ;  that  is,  I  gave  to  no  one  a  ticket  that  did  not  have  Dr.  Dar- 
rall's name  on  it  without  at  the  same  time  giviug  him  a  ticket  with  his  name  on  it. 
I  gave  Mr.  Deslonde  tickets  with  Dr.  Darrall's  name  on,  tickets  with  Mr.  Acklen's 
name  on,  and  tickets  without  either  name  ©n;  I  gave  the  same  to  Mr.  Davidson,  to 
Mr.  Barnes,  to  Mr.  Ennis,  and  to  Mr.  Harris,  who  were  both  together ;  to  Preston 
and  to  Robertson,  from  the  third  ward,  who  were  both  together,  and  to  Mr.  Gordon, 
in  town  here,  who  came  to  the  house  for  them.  I  sent  some  by  Mr.  Tate  and  by  some 
one  else  that  Davidson  sent  here  from  Bayou  Goula  to  get  some  tickets. 

Q.  Were  you  not  surprised  on  the  next  day  after  the  election  at  the  returns  as 
made  by  the  commissioners  in  regard  to  the  Congressional  vote  ? — A.  I  was  not  sur- 
prised at  all  when  I  found  out  how  the  votes  had  been  counted.  I  was  at  half  a  dozen 
different  polls  during  the  day,  and  I  was  here  at  this  poll  when  they  counted  the 
votes.  Isaw  them  commence  to  read  off  the  tickets  and  thought  it  was  all  right, 
and  went  off  to  get  my  supper  or  a  drink  or  something,  and  when  I  came  back  I  found 
that  they  had  counted  only  half  a  dozen  tickets  in  that  way,  and  had  then  com- 
menced to  count  thera  all  in  bulk.  That  was,  may  be,  an  hour  or  three-quarters  of 
an  hour  after  the  counting  commenced.  Just  about  that  time  the  box  from  the  third 
ward  came  in,  sealed  and  delivered,  and  I  asked  Mr.  Talbot,  "How  did  you  get 
through  so  quick  as  this?"  He  said,  "We  counted  the  votes  straight  in  bulk."  Then 
I  knew  that  the  votes  in  that  box  had  been  counted  straight.  I  said,  "You  counted 
all  the  black  tickets  straight  Republican?"  He  said,  "Yes,  and  all  the  others  the 
same  way."  Then  I  knew  that  all  the  Republican  tickets  that  had  your  name  on 
them  and  all  the  blanks  had  been  credited  to  Darrall.  W^hilst  I  was  considering  in 
my  mind  whether  I  should  insist  upon  a  recount,  the  box  from  the  Wharton  school- 
house  came  in,  and  I  asked  Mr.  Bruce,  "How  did  you  count  the  votes  there?''  He 
said,  "We  took  all  the  black  tickets  and  tallied  them  straight,  and  then  read  the 
scratched  tickets."  He  said,  "Why?"  "Why,"  I  said,  "  I  thought  you  would  read 
them  ont  one  by  one."  A  little  while  afterwards  he  came  back  to  me  and  said, 
"Noland  tells  me  that  you  had  some  tickets  printed  with  Acklen's  name  on  them."^ 
I  said,  "Yes."  Said  he,  "Do  you  thinkthere  wasany  inour  box?"  I  said,  "  I  know 
there  was  one  in  there,  for  I  voted  one  myself."  He  said,  "We  counted  it  for  the 
doctor,  then."  He  said,  "What  are  we  going  to  do  about  it  now?"  I  said,  "I  da 
not  know;  you  had  better  let  it  alone."  I  had  come  to  the  conclusion  that  it  was 
better  to  let  it  alone  until  I  saw  what  was  the  next  best  thing  to  do. 

It  is  not  gainsaid  that  the  regular  Republican  tickets  for  this  parish 
were  all  in  the  hands  of  Wharton  for  distribution,  nor  that  these 
straight  Republican  black-back  tickets  on  which  contestant's  name 
appears  were  printed  and  distributed  before  the  election.  Out  of  the 
12,000  printed  for  this  parish  G,000  bore  the  name  of  contestant,  4.000 
were  blank  as  to  member  of  Congress,  and  2,000  had  the  name  of  con- 
testee.  That  they  were  quietly  distributed  throughout  the  parish  the 
night  previous  and  the  da}'  of  the  election  is  shown  in  the  testimony  of 
W.  W,  Wharton  (Record,  pp.  33,  121),  C.  H.  Gordon  (p.  108),  James  H. 
Tates  (p.  57),  E.  A.  Verrett  (p.  270),  P.  G.  Deslonde  (pp.  42,  202),  Fred. 
Robertson  (p.  103),  A.  J.  Barnes  (p.  93),  Lycurgus  Bess  (p  97),  Charles 
A.  Brusl6  (p.  ol),  Charles  Commager  (pp.  99,  100),  Giles  Hunter  (p. 
100).  A.  J.  Ennis  (p.  90). 

The  contcstee  adduces  the  testimony  of  Craig  (Recor.l,  p.  272),  Carrielle 


ACKLEN    VS.    DARRALL.  137 

(p.  196),  Wilsou  (p.  26G),  Coleman  (p.  255),  Frank  Desloude,  (p.  205)^ 
Davidson  (p.  250),  Piernas  (p.  261),  and  Yerrett  (p.  209),  to  show  that, 
though  given  out,  these  tickets  were  not  voted,  simijly  because  these 
witnesses  allege  they  did  not  discover  them  in  the  boxes  during  the 
original  count  of  the  votes  on  the  day  of  the  election.  The  witness 
Davidson  alleges  he  destroyed  1,000  bearing  Acklen's  name,  which  were 
given  to  him  for  distribution.  The  manner  of  the  count  at  the  dift'erent 
polls,  however,  in  the  opinion  of  this  committee,  entirely  precludes  any 
definite  testimony  as  to  examinations  of  tickets  bearing  contestant's 
name;  and  the  weight  of  the  testimony  conclusively  shows  that  these 
tickets  were  not  only  distributed  to  the  voters,  but  voted,  and  that  the 
commissioners  of  election,  either  unaware  of  the  fact  that  such  tickets 
were  in  the  boxes,  as  they  generally  so  testify,  or  willfully,  by  counting 
them  in  bulk  and  simply  from  the  headings^  credited  the  contestee  with 
a  large  number  of  these  votes  tliat  bore  the  name  of  the  contestant. 

As  the  change  in  this  parish  by  a  recount  was  a  large  one,  this  com- 
mittee, in  a  careful  and  thorough  investigation  of  all  the  facts  con- 
nected therewith,  have  deemed  it  best  to  take  up  and  treat  each  poll 
and  all  the  evidence  on  both  sides  connected  therewith  separately,  not 
only  as  to  the  distribution  of  these  Acklen  and  blank  tickets,  the  manner 
of  the  count  of  the  votes,  but  also  as  to  the  identification  of  the  box  by 
one  or  more  of  the  commissioners  who  signed  and  delivered  it  to  the 
clerk.  An  examination  of  the  recount,  as  compared  with  that  made 
by  the  commissioners  of  election,  shows  the  changes  at  polls  1,  2, 3,  4, 
5,  6,  and  7  to  be  material,  and  all  in  favor  of  contestant,  with  the  ex- 
ception of  poll  3,  where  there  is  a  gain  of  17  votes  for  contestee. 
The  other  polls  show  but  slight  changes,  there  being  at  poll  9,  however, 
where  the  contestant  was  originally  credited  by  the  commissioners  of 
election  with  121  Republican  votes,  by  reason  of  the  Democratic  com- 
missioner having  been  secretly  apprised  of  the  fact  that  Acklen's  name 
would  appear  upon  the  Republican  ticket,  one  vote  is  found  among 
these  for  contestee.  At  no  other  poll  does  it  appear  that  the  Demo- 
cratic commissioner  was  aware  of  such  a  fact;  on  the  contrary,  each  and 
all  testify  that  they  were  unaware  of  the  existence  of  these  tickets 
bearing  Acklen's  name  until  after  the  election,  and  failed  to  examine 
any  of  them,  with  that  name  in  view,  during  the  count. 

At  poll  1,  it  appears  from  the  testimony  of  contestee's  witness,  J.  S. 
Davidson  (Record,  p.  250),  that  he  gave  to  Yerrett,  an  officer  at  this  poll, 
two  packages,  of  500  tickets  each,  one  containing  solely  the  tickets  blank 
as  to  memberof  Congress,  and  the  other,  Acklen  and  Darrall  tickets  mixed 
together.  It  further  appears  that  this  officer,  Yerrett  (Record,  p.  260),  who 
is  also  contestee's  witness,  testifies  that  he  "  gave  them  to  several  gentle- 
men around  there,  and  they  distributed  them,  and  I  distributed  some  of 
them  myself,  inside  of  the  room  where  the  poll  was."  Rev.  James  H. 
Tate,  Republican  (Record,  p.  57),  likewise  testifies  that  he  saw  them 
circulating  around,  and  that  they  were  being  given  out  to  the  voters, 
and  also  that  he  himself  voted  one. 

It  further  appears  from  the  testimony  of  Amad^e  Roth,  commissioner 
(Record,  p.  56),  that  the  tickets  were  not  scrutinized,  but  counted  as 
straight  Republican  or  straight  Democratic.    He  says : 

I  just  headed  the  tickets,  aud  when  I  saw  it  was  a  straight  Republican  ticket  I  put 
it  dowu,  aud  when  it  was  a  straight  Democratic  ticket  I  put  it  down. 

This  is  corroborated  by  other  testimony  at  that  poll. 

But  the  contestee  claims  that  at  the  recount  the  paper  covering  the 
box  appeared  fractured  or  torn,  and  although  the  clerk  alleged  that  this 
had  occurred  through  his  carelessness  in  moving  the  boxes  from  one 


138  DIGEST    OF    ELECTION    CASES. 

part  of  the  room  to  another,  yet  this  committee,  with  a  strict  regard  to 
the  interests  of  both  parties,  and  particularly  those  of  coiitestee,  on  a 
recount,  refuse  to  accept  this  box  as  recounted,  but  let  it  stand  as  orig- 
inally returned  in  favor  of  contestee. 

ROLL  2 — BAYOU  GOULA. 


supervisor's  return*.  recount. 

Dem.       Eep.      Total.  Blanks. 
Acklen 114        226        340        90 


Acklen 115 


5^*"; f*     Darren:.".:'..".."".-         86       '  S6 

Packard 394 

NichoUs 115 

J.  L.  Davidson,  colored  Republican,  and  witness  for  contestee,  alleges 
(Eecord,  p.  248)  that  he  received  from  Wharton  2,500  tickets  the  night 
before  the  election,  and  that  1,000  bore  the  name  of  Acklen.  He  alleges 
that  he  and  Whittecoe  examined  and  separated  the  Acklen  tickets  that 
night  at  his  room ;  that  he  retained  these  Acklen  tickets  at  his  own 
room,  while  Whittecoe  took  the  box  and  all  the  other  tickets  to  his  own 
room,  some  distance  away.  This  latter  fact  is  corroborated  by  Whit- 
tecoe, another  of  contestee's  witnesses,  who  says  (Record,  p.  275)  that 
they  "selected  them  (the  Acklen  tickets)  all  out  and  left  them  at  Da- 
vidson's house."  He  also  says  that  he  was  at  the  poll  at  half  past  five 
o'clock  next  morning,  with  these  tickets  for  distribution.  But  David- 
son alleges  that  he  distributed  the  tickets.  Unless  Davidson  did,  as 
this  committee  are  led  to  believe,  distribute  these  Acklen  tickets,  then 
here  is  a  conflict  of  testimony  on  this  point;  but  he  admits  (same  page), 
on  being  asked  as  to  their  being  at  his  poll : 

I  seen  just  an  hour  by  sun,  or  perhaps  later — I  seen  some  of  them,  but  not  more  than 
five;  I  think  it  was  about  two,  lying  inside  of  the  room — inside,  back  of  the  poll; 
how  they  came  there,  I  don't  know. 

This  clearly  indicates  their  presence  at  the  poll ;  but  he  further  says, 
p.  250,  that  he  sent  to  Wharton  for  500  more  by  a  man  named  Joe  Har- 
die,  and  he  received  from  him  the  500  sent  for,  all  of  which  were  blank 
as  to  member  of  Congress.  From  the  testimony  of  W.  W.  Wharton, 
Davidson  was  in  the  movement  to  distribute  these  Acklen  and  blank 
tickets,  and  from  his  own  admissions  he  played  a  double  part ;  either 
he  deceived  Wharton  or  Whittecoei,  and  as  Whittecoe  is  a  very  ignorant 
negro  and  testifies  he  can  barely  read  and  cannot  write,  it  most  probably 
was  this  latter. 

But  the  distribution  of  these  tickets  at  this  poll  is  proved  beyond 
question  by  the  testimony  of  P.G.  Deslonde,  contestee's  witness  (Record, 
pp.  42  and  43) : 

Q.  Did  yon  receive  any  tickets  from  Mr.  Wharton  yourself? — A.  I  did. 

Q.  Were  those  ticketsyou  distributed  the  black-back  tickets  ? — A.  Yes,  sir. 

Q.  All  of  them? — A.  Yes,  sir.  I  gave  a  bunch  of  them  each  to  some  of  my  friends. 
I  took  them  to  be  Republican  tickets,  because  they  were  headed  Republican  tickets. 

Q.  Were  they  alike  in  every  respect,  with  the  exception  of  the  names  you  have 
mentioned? — A.  Yes,  sir.  In  the  morning  I  took  all  these  tickets  to  be  Republican 
tickets.  During  the  day  I  discovered  the  name  of  Mr.  Acklen  upon  the  tickets  and 
that  some  wei-e  blank.     Therefore  I  discovered  that  there  were  three  tickets. 

This  is  corroborated  by  Wharton,  who  says  he  gave  these  tickets  to 
Deslonde;  and,  further,  this  same  witness  again  establishes  their  circu- 
lation at  this  poll  by  saying,  in  answer  to  the  question  (Eecord,  p.  43) : 

Q.  In  visiting  the  various  polls  of  the  parish  on  the  day  of  the  election,  did  you  see 
the  Republican  ticket  with  Mr.  Acklen's  name  on  it  at  more  than  one  poll  ? — A.  No, 
sir;  I  saw  them  when  I  came  back  about  three  o'clock  at  Bayou  Gouiapoll. 


ACKLEN    VS.    DARE  ALL.  #  139 

Thus,  tlie  question  as  to  their  circulation  here  is  deemed  by  tbis  com- 
mittee to  be  conclusively  settled. 

The  only  parties  testifying  to  having  been  jn-esent  or  possessing  any 
knowledge  of  the  manner  of  the  count  of  the  votes  at  this  poll,  are  — 

William  A.  Smith  (Eecord,  page  54) ;  J.  S.  Davidson  (Eecord,  pages  39 
and  23) ;  Bazile  Craig  (Eecord,  page  274) ;  and  William  Whittecoe  (Eec- 
ord, page  275).  This  latter  testifies  that  he  was  only  present  part  of  the 
time,  and  as  he  knows  very  little  of  the  count,  his  testimony  will  not  be 
considered. 

William  A.  Smith,  Democratic  commissioner,  poll  2  {p.  54,  Record), 
says : 

Q.  Describe  the  manner  in  which  the  votes  were  counted. — A.  The  box  was 
opened  and  the  tickets  were  taken  out,  and  the  Democratic  tickets  were  strung  on  a 
string,  and  the  Republican  tickets  were  strung  on  a  string,  and  the  scratched  tickets 
also,  and  then  they  were  taken  and  called  off  of  each  string. 

Q.  In  the  way  in  which  you  counted  the  tickets  at  that  poll  could  J.  H.  Acklen's 
name  have  been  on  any  ot  them  without  your  seeing  it  f — A.  Yes,  sir. 

Q.  You  say  you  did  not  scrutinize  the  votes  ? — A.  No,  sir ;  I  never  looked  at  them. 

J.  S.  Davidson,  Republican  commissioner,  poll  2  (pp.  39  and  23, 
Record),  says: 

Q.  How  were  the  tickets  at  that  poll  counted  after  the  election  ?  Were  they  counted 
as  straight  Republican  tickets,  and  so  on  ?  Were  they  sorted  off  and  counted  in  that 
■way,  or  were  they  read  by  name  through  each  ticket  T — A.  They  were  not  read  name 
by  name.  They  were  taken  out  by  one  commissioner  and  counted  as  a  straight  Re- 
publican ticket,  or  straight  Democratic  ticket,  or  scratched  tickets.  They  were  put 
off  in  three  different  piles. 

Q.  How  many  tickets  were  put  on  the  string  before  the  counting  began? — A.  They 
strung  them  all  and  they  counted  them  afterward. 

Bazill  Craig,  Republican  commissioner,  poll  2  (p.  274,  Record),  says 
(Darrall's  witness) : 

Q.  After  you  put  them  on  the  string,  who  counted  them? — A.  Robert  Hebert  kept 
one  tally-sheet,  and  Mr.  William  Smith  kept  the  other ;  and  I  took  the  tickets  out  of 
the  box,  and  so  did  he,  and  we  strung  the  tickets.  All  the  straight  Republican  tickets 
went  on  a  string,  and  all  the  straight  Democratic  tickets  was  put  on  a  string,  and  all 
those  that  was  scratched  was  put  to  themselves;  and  in  taking  out  the  tickets  we 
examined  to  see  which  was  the  straight  Republican;  and  we  read  them  and  found 
that  all  those  were  Republican,  and  they  were  put  down  in  that  way,  and  the  straight 
Democratic  tickets  all  put  down  the  same  way ;  and,  after  putting  them  on  a  string,  we 
then  counted  them. 

Q.  Now,  Mr.  Craig,  how  did  yon  string  these  tickets!  Did  you  use  a  needle  and  a 
string^ — A.  Yes,  sir. 

Q.  Where  did  you  pass  the  needle ;  through  the  center  ? — A.  It  was  done  in  such  a 
manner  that  I  cannot  say  whether  they  were  all  through  the  center  or  not.    We 

{)icked  them  up,  and  put  them  sufficiently,  some  half-way,  some  perhaps  not  exactly ; 
)nt  we  put  them  as  near  the  center  as  we  could,  to  my  recollection. 

Q.  Then,  in  stringing  the  tickets,  you  strung  them  all  on  a  string  by  passing  the 
needle  as  near  the  center  as  you  could  ? — A.  Yes,  sir. 

Q.  Now,  Mr.  Craig,  if  you  were  to  string  several  hundred  of  these  tickets  through 
the  center,  in  the  manner  you  have  described,  on  a  string,  do  you  think  you  comd 
easily  see  the  center  of  the  ticket  without  a  great  deal  of  trouble  in  examining  it  ? — 
A.  No.  sir  ;  we  could  not. 

Q.  And  they  were  counted  on  the  string? — A.  Counted  on  the  string,  sir. 

The  committee  have  observed  that  the  Congressman's  name  appears 
just  about  the  center  of  this  black-back  ticket,  and  as  there  were  375  of 
them  strung  on  a  string  bj'  the  needle  used  being  passed  through  the 
center  of  the  ticket  before  they  were  counted  at  this  poll — and  all  the 
testimony  goes  to  show  that  they  were  counted  after  they  icere  strung — 
it  is  easily  understood  how  such  a  mistake  as  shown  by  the  recount 
could  have  occurred,  for  it  would  be  impossible  for  any  commissioner  to 
see  where  the  Congressman's  name  appeared  after  the  tickets  were  on 
the  string. 


140  DIGEST    OF    ELECTION   CASES. 

And  again,  among  those  present  at  the  count  and  testifying,  Da\id- 
son  (Whittecoe,  who  was  not  present  but  a  short  time,  excepted)  is  the 
only  commissioner  or  person  aware  of  these  tickets  being  there.  He 
see'ms  to  have  suggested  the  stringing,  and  therefore  if  his  testimony 
about  the  1,000  Acklen  tickets  be  true,  the  question  is,  was  this  stringing 
of  tickets  not  effected  by  him  for  some  ulterior  purpose  f 

P.  G.  Deslonde,  who  was  not  present  at  the  count,  but  who  con- 
versed with  Eobert  Hebert,  who  also  counted  the  tickets  at  that  poll, 
but  whose  testimonv  is  not  to  be  found  in  the  record,  says  (Record,  p. 
43): 

Q.  Did  you  not  ascertain  that  those  tickets  were  generally  counted  in  bulk  ? — A. 
Yes,  sir;  that  was  the  remark  in  the  parish;  that  they  were  counted  as  straight 
tickets. 

Q.  After  the  election,  was  it  found  that  they  had  been  voted  at  any  poll  in  the 
parish? — A.  Yes,  sir;  only  in  the  ward — in  Grosue  Tete. 

Q.  Had  they  been  voted  at  any  other  poll  in  the  parish,  so  far  as  you  heard  ? — ^A. 
No,  sir ;  by  hearsay.  Mr.  Hebert  told  me  that  there  might  be  about  five  tickets  was 
voted  there. 

Q.  Where  f— A.  Bayou  Goula,  poll  No.  2. 

Q.  Was  it  not  a  matter  of  public  notoriety  in  the  parish  after  the  election  that  many 
of  those  tickets  bearing  the  name  of  J.  H.  Acklen  on  them  and  many  of  the  blank 
tickets  were  voted  ? — A.  Yes,  sir ;  I  heard  some  of  the  commissioners  of  election  men- 
tion that ;  among  them  Mr.  Eobert  Hebert.  I  asked  him  how  the  poll  was  down  at 
Bayou  Goula,  and  he  stated  to  me  that  he  thought  there  was  some  considerable  scratch- 
ing done  there. 

Q.  Do  you  mean  by  scratching  the  voting  of  those  tickets  with  my  name  on  them  ? — 
A.  He  alluded  to  the  Cougressman  at  that  time.  I  asked  him  if  Darrall  had  received 
a  solid  vote  down  there.     He  stated  to  me  that  there  wa«  some  scratching  done. 

Q.  Do  you  mean  the  voting  of  the  blank  tickets  f — A.  I  think  that  was  the  under- 
standing of  Mr.  Hebert. 

Q.  Thatwas  your  understanding  of  it  ? — A.  Yes,  sir;  that  was  my  construction  of  it. 

Q.  Not  that  the  Republican  tickets  had  the  name  of  Dr.  DarraUscratched  otf  in  ink 
or  pencil? — A.  No,  sir. 

jS^ow,  if  this  witness  is  to  be  credited,  here  was  one  of  the  commission- 
ers who  knew  that  such  tickets  for  Acklen  or  blanks  for  Darrall  were  in 
the  box,  but  who  fails  to  count  them  for  Acklen  or  deduct  them  from 
the  vote  for  Darrall;  for  this  committee  find  that  Acklen  and  Darrall 
are  credited  with  their  full  party  vote  by  these  commissioners'  returns. 
(See  returns.)  Thus,  if  this  witness  Deslonde,  who  is  contestee's  witness 
(Eecord,  p.  201),  tells  the  truth,  there  was  collusion  between  Hebert  and 
Davidson  not  to  count  for  contestant  those  votes  cast  for  him  in  Repub- 
lican tickets.  Thus  the  entire  evidence  leads  this  committee  to  the  con- 
clusion that  either  through  accident  or  design  the  tickets  bearing  con- 
testant's name  in  the  box  of  this  poll  were  not  counted  for  him. 

These  tickets  were  found  on  the  recount  in  apparently  the  same  con- 
dition in  which  they  had  been  put  in  the  box  after  the  count  of  the  votes 
by  the  commissioners,  viz,  strung  together  and  tied  up. 

C.  H.  Gordon  (Record,  p.  Ill)  says: 

Q.  Do  you  remember  one  box  in  which  all  the  tickets  were  all  strung  on  a  string  ? — 
A.  Yes,  sir ;  that  was  the  box  from  the  first  ward,  and  the  tickets  were  all  strung 
through  the  middle. 

Q.  That  was  the  box  from  poll  number  2  at  Bayou  Goula  f — A.  Yes,  sir. 

Q.  Did  not  that  string  of  tickets  have  the  appearance  of  being  in  the  box,  just  as 
they  had  been  placed  there  by  the  commissioners  f — A.  Yes,  sir  ;  the  same  natural  ap- 
pearance. In  fact,  I  met  Mr.  Davidson  down  in  the  city,  and  I  asked  him  about  it, 
and  I  told  him  the  impression  that  had  been  brought  to  bear  that  those  tickets  had 
been  tampered  with,  and  I  asked  him,  "  How  did  you  count  your  tickets  in  your 
boxes  f"  He  said,  "  We  just  strung  them  together  on  a  string  and  counted  them"  one 
by  one,  just  as  you  would  count  money." 

This  is  corroborated  by  C.  W.  Colton  (Record,  p.  115)  and  G.  H.  Har- 
rison  (Record,  p.  110).    The  box  at  this  poll  was  sealed  with  a  band  of 


ACKLEN    VS.    DARRALL.  141 

I)aper  that  was  first  put  on  vritli  mucilage  and  tlieu  sealed  with  wax. 
Bazile  Craig,  coutestee's  witness,  says  (Kecord,  p.  274) : 

Q.  Did  yoii  assist  iu  sealiug  the  liox  at  that  poll,  Mr.  Craig? — A.  Yes,  sir. 

Q.  Over  the  key-hole  ? — A.  Yes,  sir ;  and  then  -we  took  the  candle,  with  some  red 
sealiug-wax,  and  melted  it  sufficiently  and  covered  the  paper  around  the  edges  with 
the  wax  entirely. 

Q.  Did  Mr.  Smith  have  anything  to  do  with  sealing  the  box,  as  you  recollect  ? — A. 
Mr.  Smith  was  right  there  and  helped  to  do,  for  one  had  the  candle  and  the  other  had 
the  wax. 

Q.  In  the  way  that  box  was  sealed  up,  could  it  have  been  opened  without  the  seals 
that  you  put  on  or  the  paper  that  you  put  over  have  been  broken? — A.  No,  sir. 

TV.  A.  Smith,  commissioner  at  poll  2  (Record,  p.  54),  says : 

Q.  Was  the  box  sealed? — A.  Yes,  sir. 

Q.  What  did  you  do  with  the  box  ? — A.  Brought  it  here  and  delivei*ed  it. 

Q.  Was  the  box  safely  in  your  possession  and  sight  until  you  delivered  it  to  the 
clerk  ? — A.  Yes,  sir. 

(The  box  referred  to  by  the  witness  was  here  produced  by  the  clerk  of  the  court 
for  identification.) 

Q.  Is  that  the  box  as  you  delivered  it  to  the  clerk? — A.  I  think  that  is  the  box 
yes,  sir. 

The  fact  that  the  box  was  intact  at  the  time  of  being  reopened  for 
the  recount  is  further  shown  in  the  testimony  of  G.  H.  Harrison,  G.  W. 
Colton,  and  J.  H.  Shanks,  aside  from  the  testimony  of  James  Crowel. 
and  C.  H.  Gordon,  is  corroborative  of  the  fact.  The  committee  unhesi- 
tatingly decide  that  the  vote  of  this  poll  should  stand  as  recounted. 

POLL  4 — WHARTON  UNION  SCHOOL. 

supervisor's  return. 

Ackleu 33 

Darrall 128 

RECOUNT. 

Dem.    Rep.    Total.  Blanks. 

Acklen '. 32        2        34  „, 

Darrall —    105      105  '^^ 

Packard 128 

Nicholls 33 

These  Acklen  and  blank  tickets  were  distributed  here  by  C.  H.  Gor- 
don (p.  108),  and  also  by  Senator  Wharton. 

The  count  of  the  votes  was  made  in  bulk,  as  appears  from  the  testi- 
mony of  N.  L.  Bruce,  Democratic  commissioner  for  poll  4  (Record,  p.  47), 
who  says : 

Q.  Describe  the  manner  in  which  the  votes  at  that  poll  were  counted. — A.  We  first 
selected  out  the  straight  tickets,  both  Democratic  and  Republican,  and  would  glance 
at  them  or  glance  through  them,  and  then  take  them  down  as  so  many  straight  tickets. 
I  would  take  down,  for  instance,  and  mark  the  tallies  to  a  certain  number  of  the  Re- 
publican tickets  all  through,  and  then  I  would  take  the  other  ticket  and  mark  that 
down  in  the  like  manner.     As  for  scratched  tickets,  we  generally  I'ead  them  through. 

Q.  In  the  way  you  counted  those  votes  could  the  name  of  J.  H.  Acklen  have  been 
on  some  of  them  without  you  seeing  it  ? — A.  Well,  yes,  sir;  on  account  of  the  tickets 
looking  so  much  alike.  I  noticed  that  gentleman  up  therej(referring  to  Mr.  Gordon, 
the  clerk  of  the  court)  laughing  when  we  were  reading  some  of  them  over  as  straight 
tickets. 

J.  H.  Shanks,  United  States  supervisor  at  poll  4  (Record,  p.  49),  says : 

Q.  Did  you  see  the  votes  counted  ? — A.  I  did. 

Q.  How  were  they  counted? — A.  By  separating  the  Democratic  and  Republican 
a.nd  scratched  tickets.  Mr.  Verbois  took  them  out  of  the  box  and  Mr.  Holmes  over- 
looked them,  and  they  were  separated  and  counted  that  way.     While  they  were  be- 


142  DIGEST    OF    ELECTION   CASES. 

ing  counted  my  friend  Mr.  Gordon  was  there,  and  I  saw  him  laughing  aud  smilinj; 
and  I  could  not  tell  what  he  was  laughing  at,  but  I  found  out  afterwards. 

L.  M.  Yerbois,  commissioner  at  poll  4  (Kecord,  p.  102),  sajs: 

Question.  Were  you  present  at  the  count  f — Answer.  I  counted  them  myself,  sir. 

Q.  Please  describe  the  way  in  which  the  tickets  were  counted  at  that  poll. — A.  We 
first  commenced  calling  the  names,  and  we  counted  a  few  votes  that  way,  calling  all 
the  names  off.  Then  we  divided  them,  aud  put  all  the  Democratic  tickets  that  had 
no  scratch  on  them  in  one  pile  and  the  Republican  tickets  on  one  pile,  after  examin- 
ing them  to  see  if  there  was  any  scratching  on  them.  Mr.  Sandidge  and  I  examined 
them.  I  believe  he  stood  over  my  shoulder.  Then  I  took  up  the  piles  and  counted 
them,  one,  two,  three,  and  so  on,  until  the  quantity  in  the  pile  was  counted ;  aud  I 
would  say  to  those  who  were  marking  to  mark  so  many  Republican  tickets  or  so  many 
Democratic  tickets,  and  then  I  would  fold  them  up  and  put  them  in  the  box. 

^.  In  the  way  in  which  those  tickets  were  counted,  could  the  name  of  J.  H.  Acklen 
have  been  on  some  of  them  without  your  seeing  it  ? — A.  Yes,  sir ;  because  I  held  them 
in  my  fingers  and  counted  them  as  you  would  generally  count  bank-notes,  one  over 
the  other. 

C.  H.  Gordon,  United  States  marshal  at  poll  4  (Kecord,  p.  108),  says: 

Q.  Will  you  describe  thcM'ay  in  which  those  voteswere  counted  ? — A.  Well,  precisely 
at  6  o'clock  the  ballot-boxes  were  opened  and  the  commissioners  made  arrangements 
to  commence  to  count  and  tally.  Tne  tickets  were  laid  out  separately.  The  regular 
Republican  tickets,  or  the  Wharton  tickets,  that  were  not  scratched,  were  laid  off  in 
piles  of  thirties,,  and  the  Wakefield  tickets  that  were  not  scratched  were  laid  off  to 
themselves.     They  were  all  counted  by  thirties. 

Q.  In  the  way  in  which  those  tickelis  were  counted  was  it  an  easy  matter  for  the 
name  of  J.  H.  Acklen  to  have  been  on  many  of  them  without  the  commissioners  being 
aware  of  that  fact  ? — A.  Yes,  sir :  it  was  a  very  easy  matter.  I  could  not  help  from 
langhlug  at  the  time  at  the  way  tney  were  counting  them.  The  two  Democratic  com- 
missioners appeared  to  be  very  close,  and  there  was  one  Republican  commissioner, 
and  they  scrutinized  the  tickets  pretty  closely  and  were  counting  them  as  straight ; 
and  I  was  laughing  at  them  counting  them  as  straight  tickets  when  some  of  them 
were  blank  and  some  of  them  had  Mr.  Acklen's  name  on  them.  They  were  counting 
them  as  straight  for  Mr.  Darrall. 

On  page  60  he  says : 

Q.  One  of  the  witnesses  testified  to  your  laughing  at  the  time  of  counting  of  the 
votes;  what  was  the  reason  of  that? — A.  I  was  laughing  at  this:  Mr.  Bruce  was  put 
on  as  one  of  the  Democratic  commissioners  and  Mr.  Verbois,  with  the  understaniiing 
that  they  were  to  watch  the  votes  very  closely  and  see  that  the  Democratic  party  got 
every  vote,  and  when  I  saw  them  counting  them  at  night,  the  way  they  counted  them 
was  that  they  laid  the  Republican  tickets  in  a  bunch  together  and  just  looked  at 
the  heads  of  them  to  see  that  they  were  Republican  and  were  not  scratched,  and  they 
would  lay  them  aside,  and  the  Democratic  tickets  in  the  same  way,  and  then  they 
counted  them  off  by  thirties ;  and  what  made  me  laugh  was  that  they  counted 
them  all  straight  for  Darrall  when  some  of  them  had  Acklen's  name  on  them  and  some 
did  not  have  any  one's  name  on  them. 

Geo.  Holmes,  Republican  commissioner  at  poll  4  (Record^p.  46),  says: 

Q.  After  you  finished  the  count,  what  did  you  do  with  the  ticket*  ? — A.  They  were 
put  in  the  box,  and  the  box  was  sealed  np. 

Q.  What  did  you  do  with  the  box  T — A.  Brought  it  to  the  clerk. 

Q.  Was  the  box  in  your  possession  until  you  delivered  it  to  the  clerk  ? — A.  Yes,  sir . 

(The  box  referred  to  by  the  witness  was  here  brought  in  by  the  clerk  of  the  court 
for  identification.) 

Q.  Is  that  the  box? — A.  Yes,  sir,  that  is  the  box? 

Q.  Is  that  the  way  you  delivered  it  to  the  clerk? — A.  Yes,  sir. 

N.  L.  Bruce,  commissioner  at  poll  4  (Record,  p.  48),  says  : 

Q.  Was  the  box  safely  in  your  possession  until  you  delivered  it  to  the  clerk  of  the 
court  according  to  law  f — A.  Well,  we  put  it  in  the  ante-room  there,  and  had  keepers 
watching  it. 

(The  box  referred  to  by  the  witness  "was  here  brought  in  by  the  clerk  for  identifi- 
cation. ) 

Q.  Is  that  the  box,  and  is  it  sealed  up  as  yon  delivered  it?— A.  It  looks  to  me  like 
it,  and  there  is  my  writing  on  it. 


ACKLEN   VS.    DARRALL.  143 

L.  M.  Verbois,  commissioner  atpoll  4  (Eecord,  pp.  52  and  102),  says: 

Q.  After  you  finished  the  count,  what  did  you  do  with  the  tickets  ? — A.  We  put  them 
back  in  the  box. 

Q.  What  did  you  do  with  the  box  ? — A.  We  brought  the  box  and  delivered  it  to  Des- 
londe,  the  registrar. 

Q.  Was  the  box  in  your  possession  until  it  was  delivered? — A.  Yes,  sir ;  we  sealed 
the  box. 

(The  box  referred  to  was  here  produced  by  the  clerk  for  identification.) 

Q.  Is  that  the  box ? — A.  Yes,  sir;  that  is  the  one. 

Q.  Is  it  as  you  delivered  it  f — A.  Yes,  sir. 

Q.  Were  you  present  when  the  box  was  sealed,  Mr.  Verbois? — A.  I  sealed  it  myself, 
sir. 

Again  (p.  102) : 

Q.  You  were  present  and  examined  the  box  previous  to  the  recount,  and  testified 
that  it  had  not  been  opened  or  tampered  with  ? — A.  Yes,  sir. 

Q.  Are  you  willing  to  swear  to  that  fact,  beyond  all  question  ? — A.  Yes,  sir;  I  exam- 
ined it  closely  in  the  presence  of  the  gentlemen  that  were  there,  and  I  could  not  see 
anything  that  was  out  of  the  way.  I  had  a  particuiar  key  in  my  pocket  that  day, 
and  In  putting  the  seal  upon  it  I  put  the  key  on  the  sealing-wax,  and  when  the  box 
was  brought  to  me  some  few  days  ago,  or  about  a  month  ago,  I  examined  to  see  whether 
I  could  not  see  that  print,  and  I  saw  it  the  same  as  it  was  before. 

Q.  Then  was  it  possible  for  any  one  to  have  opened  or  to  have  tampered  with  that 
box  without  your  knowing  that  fact? — A.  No,  sir.  I  will  give  my  reason  for  it.  I 
was  very  careful  in  sealing  the  box  to  put  three  seals  on  top  and  to  put  four  on  the 
side.  That  was  right  under  the  hole,  so  that  if  they  wanted  to  put  anything  in  the  hole 
they  would  have  to  break  the  seal.  The  paper  was  very  wide.  At  the  lock  of  it  there 
was  also  five  seals,  two  on  top  and  three  at  the  bottom.  The  two  on  top  were  above 
the  lock  and  the  three  at  the  bottom  were  below,  and  they  could  not  get  the  lock  open 
without  tearing  the  paper.  The  paper  was  fully  six  inches  wide.  What  made  me  par- 
ticular was,  that  I  had  heard  so  much  talk  about  stuffing  ballot-boxes,  and  I  thought 
I  would  give  them  some  trouble  to  stuff  that  box,  if  they  did  do  it.  That  was  my  view 
in  doing  it. 

The  contestee  introduces  but  one  witness  at  this  poll,  viz,  F.  V.  Des- 
londe  (Kecord,  p.  204) : 

Q.  Yon  state  further  that  you  did  not  know  that  Mr.  Wharton  was  opposed  to  Mr» 
Darrall,  either  before  or  since  the  election? — A.  No,  sir;  neither  before  nor  since. 

Q.  Would  Mr.  Wharton  have  been  likely  to  have  informed  you  of  any  opposition  to 
Dr.  Darrall,  knowing  you  to  be  a  friend  of  Dr.  Darrall's  ? — A.  That  I  don't  know.  He 
never  said  nothing  to  me.     I  know  that  on  the  day  of  election  he  was  at  Grosse  Tete. 

The  very  limited  knowledge  possessed  by  this  witness,  who  is  a  col- 
ored man,  is  shown  in  the  testimony  just  quoted.  Wharton,  it  appears 
from  the  testimony  of  others,  was  in  Plaquemine. 

The  fact  of  the  count  of  the  votes  in  bulk,  when  there  were  evidently 
Acklen  and  blank  tickets  among  the  others,  is  clearly  shown  by  the 
testimony  cited ;  and  the  identification  of  the  box  by  the  commissioners 
is  complete  and  perfect.  The  committee  decide  that  this  poll  shall  stand 
as  recounted. 

POLL  5 — DEBLIEUX  PLANTATION. 

supbkvisok's  returns. 

Acklen 63 

Darrall 207 

RECOUNT. 

Dem.    Sep.    TotaL    Blanks. 

Acklen 63      95       158         32 

DarraU... _      79         79         _ 

Packard 207 

Nicholls 63 

Antoine 207 

Wiltz 63 


144  DIGEST    OF    ELECTION    CASES. 

The  distribution  of  tickets. 
Fred.  Robertson,  Republican,  at  poll  5  (p.  103,  Record),  says: 

Q.  Mr.  Robertson,  did  you,  previous  to  or  ou  the  day  of  tbe  election,  see  any  Whar- 
ton black-back  Kepublicau  tickets  with  tbe  name  of  J.  H.  Acklen  on  them  for  Con- 
gressman or  with  the  Congressman's  name  left  off?— A.  Yes,  sir;  I  distributed  some 
■of  those  tickets. 

Cross-examination : 

Q.  Do  yon  know  of  your  own  personal  knowledge  whether  or  not  any  of  the  Repub- 
lican tickets,  having  the  name  of  Mr.  Acklen  on  them  for  Congress,  were  voted  at  that 
poll?    I  do  not  speak  of  what  you  have  heard.— A.  Yes,  sir;  I  have  that  impression. 

Q.  I  do  not  want  your  impression,  but  what  you  know  of  your  own  personal  knowl- 
edge.—A.  I  know  that  some  of  them  were  voted;  those  that  I  gave  out  were  voted. 

James  Preston  also  distributed  tickets  for  this  place.  See  testimony 
of  Wharton. 

The  count  of  the  votes. 

E.  B.  Talbot,  attorney  at  law.  Democratic  commissioner  at  poll  5  (p. 
46,  Record),  says : 

Q.  Did  you  count  or  assist  in  counting  the  votes  at  that  poll? — A.  Yes,  sir;  I  did; 
I  counted  them. 

Q.  Describe  the  manner  in  which  the  votes  at  that  poll  were  counted. — A.  Well, 
the  straight  Republican  tickets  and  the  straight  Democratic  tickets  and  the  scratched 
tickets  were  each  placed  separately  in  piles,  and  the  aggregate  number  of  each  was 
put  down  on  the  tally-sheet. 

Cross-examination : 

Q.  When  you  counted  the  tickets  did  you  pass  them  to  anybody  else? — A.  In  count- 
ing the  tickets  I  was  assisted  in  taking  them  out  of  the  box  and  separating  them  by 
Coleman,  a  commissioner  and  a  Republican. 

Q.  When  you  called  out  the  votes  the  talliesmen,  as  you  called  them,  marked  them 
down  ? — A.  Yes,  sir. 

Q.  You  did  the  calling? — A.  Yes,  sir;  and  the  separating,  assisted  by  this  man 
Coleman.  One  of  the  United  States  commissioners  made  out  one  of  the  tally-sheets, 
and  one  of  the  commissioner*  made  out  the  other.     This  man  Coleman  could  not  write. 

Ernest  Gourrier,  at  poll  5,  (p  87,  Record),  says : 

Q.  Will  you  describe  the  manner  and  way  in  which  the  votes  at  that  poll  were 
counted? — A.  The  commissioners  assorted  them  out  by  general  appearance,  and  took 
a  cursory  glance  at  them,  and  if  there  was  no  scratching  on  them  they  were  all  piled 
up  as  straight  tickets,  and  the  tickets  that  were  scrBtched  were  put  aside  and  were 
then  counted  over.  The  scratched  names  were  noticed,  and  the  balance  of  the  ticket 
was  counted  just  as  it  was  supposed  to  be ;  that  is,  a  straight  ticket.  Well,  I  did  not 
think  that  the  voting  amounted  to  anything;  that  it  was  all  with  the  returning-board, 
and  we  did  not  care  what  became  of  it.  Then,  afterward,  somebody  remarked  that 
the  tally-sheets  did  not  amount  to  anything,  and  we  threw  them  aside,  and  one  of  the 
commissioners  just  made  out  a  statement  or  the  return  from  memory  as  to  how  the 
vote  had  been  counted  out. 

Q.  State  the  name  of  that  commissioner. — A.  Mr.  Talbot. 

Q.  Mr.  Gourrier,  is  it  not  a  fact  that  Mr.  Talbot  took  the  tickets  out  of  the  box  and 
glanced  at  them  to  see  whether  they  were  scratched  or  not,  and  then  placed  them  in 
piles;  and  that  Jacob  Coleman,  another  commissioner,  had  nothing  to  do  with  the 
votes,  unless  it  was  toward  the  last,  when  he  assorted  a  few  of  them  ? — A,  I  believe 
he  helped  to  spread  them  around  or  assort  them  out.    I  do  not  know  that  he  did  much. 

Q.  Did  Jacob  Coleman  examine  the  tickets  and  read  the  names  on  them  ? — A.  No, 
sir.  I  am  free  to  say  that  he  did  not  read  a  ticket  through.  He  just  assorted  them 
out.     He  could  barely  read,  anyhow,  as  it  was. 

Q.  Is  Jacob  Coleman  not  an  ordinary  plantation  field-hand  ? — A.  He  is  an  ordinary 
field-hand.  I  never  saw  him  anywhere  else.  I  never  saw  him  anywhere  scarcely  be- 
fore that  day. 

Q.  In  the  way  in  which  those  tickets  were  counted,  Mr.  Gourrier,  was  it  not  very 
easy  for  the  name  of  J.  H.  Acklen  to  have  been  on  a  number  of  them  without  any  of 
the  commissioners  seeing  it? — A.  Yes,  sir;  easy  enough.     They  only  took  a  cursory 


ACKLEX    VS.    DARRALL.  145 

glauce  at  the  tickets  to  see  if  there  were  any  erasures,  and  where  there  was  an  erasure 
that  ticket  was  scrutinized  as  to  the  erasure. 

Cross-examiuation : 

Q.  Then,  if  I  understand  you,  Mr.  Gotirrier,  the  returns  -were  made  up  without  us- 
ing any  tally-sheets  f — A.  Yes,  sir. 

Q.  From  tlie  vote  as  actuallv  cast? — A.  From  the  vote  as  counted  and  remembered 
by  Mr.  Talbot. 

Q.  All  of  the  commissioners,  including  yourself,  were  satisfied  with  the  return  t — A. 
Yes,  sir.  For  my  part  I  knt!w  that  it  did  not  amount  to  anything  ;  that  the  return- 
ing-board  would  fix  it  up  to  suit  themselves,  and  that  it  was  no  use  to  vote  at  all. 

Jacob  Coleman,  Kepublican,  at  poll  5  (p.  257,  Record),  says  (Darrall's 
witness) : 

Q.  Now,  Mr.  Coleman,  will  you  please  describe  exactly  how  this  count  was  made, 
as  you  did  not  previously  descrilfe  it  carefully — the  count  of  the  tickets  ? — A.  The  way 
them  tickets  was  coupted,  I  unlocked  the  box;  then  I  taken— myself  and  Parker — 
taken  the  tickets  out,  and  laying  them  all  out  straight  on  the  barrel,  the  straight 
Republican  tickets  all  to  themselves,  and  the  straight  Democratic  tickets  all  to  them- 
selves, in  separate  piles;  then  we  taken  the  straight  Republican  tickets,  wrote  each 
name  down  on  the  ticket  carefully  as  we  could,  and  each  name  was  given  his  com- 
plement of  votes,  his  number  of  votes;  the  names  was  taken  down  as  they  were  on 
the  ticket,  and  were  written  down;  and  the  Democratic  tickets  the  same  way;  and 
the  scratched  tickets  was  counted,  and  those  that  were  not  scratched ;  the  name  was 
taken  down  straight  on  the  ticket,  the  names  written,  and  the  complement  of  votes 
written  down. 

James  H.  Parker,  Republican,  poll  5  (p.  260,  Record),  says  (Darrall's 
witness) : 

Q.  Did  Mr.  Talbert  arrange  the  tickets  in  piles  on  the  barrel  ? — A.  Mr.  Talbert  ar- 
ranged them. 

Q.  How  many  piles  ? — ^A.  In  three  piles. 

Q.  Were  the  straight  Republican  tickets  placed  in  one  pile,  and  the  straight  Demo- 
cratic tickets  in  another,  and  the  scratched  tickets  in  another  T — A.  Yes,  sir. 

Q.  Did  Mr.  Talbert  then  call  off  so  many  straight  Republican  tickets! — A.  Yes,  sir. 

Q.  Did  he  then  call  off  so  many  straight  Democratic  tickets  f — A.  Yes,  sir. 

Q.  Did  Mr.  Talbert  make  out  the  statement  himself  of  all  the  votes  of  the  poll  T — ^A. 
Yes,  sir. 

Let  it  be  remembered  that  the  box  of  this  poll  was  sent  to  the  clerk's 
office  about  one  and  a  half  or  two  hours  after  the  poll  closed.  There 
were  over  300  ballots,  49  names  on  each,  to  be  counted  in  this  time  j  this 
fully  proves  the  count  in  bulk. 

The  identification  of  the  box. 
E.  B.  Talbert,  commissioner  at  poll  5  (p.  47,  Record),  says : 

Q.  What  did  you  do  with  the  box  ? — A.  We  gave  it  in  charge  of  one  of  the  commis- 
sioners, who  brought  it  to  the  court-house.  I  subsequently  examined  the  box  and 
found  it  in  the  condition  that  I  had  sent  it  over  in. 

(The  box  was  here  produced  by  the  clerk  of  the  court  for  identification.) 
Q.  Please  examine  that  box  and  see  if  it  is  in  the  same  condition  in  which  you  de- 
livered it  to  the  clerk. — A.  Yes,  sir;  I  believe  it  is. 

Jiicob  Coleman,  poll  5  (p.  47,  Record),  says  (Darrall's  witness) : 

Q.  After  you  bad  finished  the  count  what  did  you  do  with  the  tickets  f — A.  We  put 
them  in  the  box  and  sealed  it. 

Q.  What  did  yon  do  with  the  box  T — A.  Brought  it  here  and  delivered  it  to  the  clerk 
of  the  court. 

Q.  You  had  it  until  you  delivered  it  to  the  clerk  ? — A.  Yes,  sir  ;  I  did. 

(The  clerk  produced  the  box  referred  to  for  identification.) 

Q.  Is  that  the  box  f — A.  Yes,  sir;  I  put  that  wax  on  it  myself. 

Q.  It  is  as  you  delivered  it  T — A.  Yes,  sir. 

George  Butterick,  poll  5  (p.  239,  Record),  says  (Darrall's  witness) : 

Q.  In  what  manner  did  you  seal  the  box,  or  did  you  seal  it  at  all  after  the  tickets 
H  Mis.  58 10 


146  DIGEST  OF  ELECTION  CASES. 

were  returned  to  the  box  ? — A.  I  saw  that  the  box  was  sealed ;  it  was  sealed  by  Mr, 
Gourrier,  the  democrat ;  it  was  certainly  done  in  the  ordinary  way,  or  I  should  have 
noticed  it. 

Q.  Was  it  sealed  with  sealing-wax  or  with  mucilage  ?— A.  With  sealing-wax. 

Q.  Was  the  key-hole  sealed  up ;  or  have  you  any  recollection  of  that  fact  ? — A.  I 
have  no  recollection  of  it ;  but  liad  it  not  been  sealed  I  should  have  been  apt  to  re- 
member it.  I  should  not  probably  have  allowed  it  to  go  to  the  court-house  unless  I 
seen  it  was  properly  sealed. 

Mr.  Darrall  introduces  the  following  witnesses  at  poll  5,  in  rebuttal : 
Geo.  Buttrick  states  there  were  no  Acklen  or  blank  tickets  either 

voted  or  distributed  at  that  poll  5  but  on  cross-examination  (page  239^ 

Eecord)  sajs: 

Q.  You  testified  that  there  were  no  tickets  distributed  at  that  poll  ? — A.  I  testified 
to  the  best  of  my  knowledge. 

Q.  What  is  your  knowledge  on  that  subject,  when  you  were  in  the  house  all  day 
with  the  exception  of  once  ? — A.  JTot  very  good. 

Q.  I  understand  you  to  have  stated  that  these  tickets  were  taken  out  of  the  box  by 
Coleman ;  and  they  were  handed  to  Talbert  and  scrutinized  by  him,  and  that  you  and 
Mr.  Guerrifere  laid  oif  and  made  up  the  tally-sheets  ? — A.  Yes,  sir. 

Q.  Under  the  circumstances  could  you  have  seen  every  name  on  every  ticket  that 
was  scrutinized  by  Mr.  Talbert? — A.  Certainly  I  did  not  see  any  of  them. 

Jacob  Coleman  states  there  were  no  blanks  or  Acklen  tickets  dis- 
tributed at  that  poll,  as  he  was  about  the  poll  all  day ;  but  on  cross-ex- 
amination (Eecord,  p.  256)  says : 

Q.  Mr.  Coleman,  how  many  polls  were  you  at  on  the  day*  of  election  T — A.  Only  one, 
sir. 

Q.  Were  you  in  the  room  all  day  as  commissioner? — A.  I  was  in  the  room  all  day,^ 
as  near  as  I  can  come  at  it,  except  about  fifteen  minutes.  I  asked  for  leave  to  get 
permission  to  go  and  get  dinner. 

Q.  Did  you  get  out  at  any  other  time  except  to  get  your  dinner? — A.  No,  sir. 

Q.  Where  did  you  get  your  dinner  ? — A.  At  Mr.  Talbert's  house,  about  two  acre» 
fi-om  the  poll. 

Q.  You  were  gone,  then,  about  fifteen  minutes  from  the  poll  ? — A.  As  near  as  I  re- 
collect.   It  might  have  been  a  little  longer. 

Q.  As  you  were  in  the  room  all  day,  except  fifteen  minutes,  which  time  you  took  to 
go  a  distance  of  a  hundred  and  forty  yards  and  to  get  your  dinner  and  return,  how  i» 
it  that  you  know  there  were  no  Republican  tickets  distributed  among  the  voters  at 
the  poll  ? — A.  My  reason  is  this :  because  I  had  a  good  many  of  the  tickets  in  there, 
and  whenever  there  was  a  diiierent  ticket  came  in  I  knew  it.  I  had  a  good  many  in 
there  in  the  room,  up  behind  the  box.  When  some  one  came  up  who  didn't  have  a 
ticket,  I  gave  them  one.  We  closely  examined  them,  and  whensomever  there  was  a 
ticket,  except  it  was  a  straight  Republican  ticket,  we  knew  it.     I  knew  it  anyhow. 

Q.  Do  you  mean  to  say  that  you  knew  the  difference  between  the  Republican  tick- 
ets with  Mr.  Acklen's  name  on  them  and  with  Dr.  Darrall's  name  on  them  as  they 
were  being  voted  in  the  box  ? — A.  No,  sir ;  I  did  not  exactly  mean  that.  It  is  just  the 
same  as  I  taken  up  this  piece  of  paper  and  that  piece  of  paper,  and  I  see  the  difference 
in  this  piece  of  paper  and  this  one.  When  this  one  comes  in  I  know  the  difference — 
this  one  and  that  one,  because  I  examined  the  two.  [Witness  illustrates  with  two 
pieces  of  paper.  ] 

Q.  Did  you  examine  the  tickets  as  they  were  voted  ? — A.  No,  sir ;  but  I  examined 
the  same  kind. 

Q.  Did  you  examine  the  tickets  in  the  hands  of  the  voters  ? — A.  No,  sir. 

Q.  Did  you  examine  the  tickets  they  voted  ? — ^A.  No,  sir. 

James  H.  Parker  states  that  there  were  no  blanks  or  Acklen's  tickets 
distributed  at  poll  5,  and,  therefore,  none  voted  j  but  on  cross-examina- 
tion (Record,  p.  259)  says : 

Q.  Where  were  you  on  the  day  of  election  ? — A.  I  was  right  there  when  they  was 
voting  at  the  polls. 

Q.  In  the  house  all  day  ?— A.  Until  twelve  o'clock ;  then  I  went  out. 

Q.  How  long  did  you  stay  out  ? — A.  About  five  minutes. 

Q.  Did  you  then  return  and  remain  in  the  house  all  day  ? — A.  Yes,  sir. 

Q.  Did  you  know  whether  any  Republican  tickets  bearing  the  name  of  Acklen  were 
♦irculated  among  the  voters  outside  f — A.  No,  sir ;  1  did  not  see  any. 


ACKLEN   VS.    DARRALL.  147 

Q.  Did  you  go  among  the  voters  ou  tlie  day  of  election  ? — A.  Before  the  poll  was 
opened  I  did. 

Q.  Had  there  been  Republican  tickets  with  Acklen's  name  on  them  circulated  among 
the  voters  would  you  have  been  able  to  see  after  the  polls  were  opened  T — A.  No,  sir ; 
I  would  not  be  able  to  see  them. 

The  foregoing  testimouy  fully  proves  the  distribution  and  voting  of 
these  Ackleu  and  blank  tickets  at  this  poll.  The  count  of  the  votes  in 
bulk  is  likewise  shown  in  the  testimony  quoted.  And  that  fact,  in  the 
opinion  of  this  committee,  is  fully  established  when  it  is  borne  in  mind 
that  this  box  was  sent  in  to  the  clerk  of  the  court  in  less  than  one  hour 
after  the  closing  of  th«  poll.  When  it  is  remembered  that  there  were 
over  three  hundred  ballots,  containing  over  forty  names  each,  to  l^ve 
been  counted  and  tallied,  and  the  returns  made  up,  it  would  be  absurd 
to  suppose  that  the  tickets  were  examined  as  to  contestant's  name,  and 
that  they  must  have  been,  as  the  witnesses  allege,  counted  in  bulk;  nor 
does  the  testimony  of  the  witnesses  on  behalf  of  contestee,  also  quoted, 
in  any  wise  impinge  the  facts  so  clearly  shown.  These,  together  with 
the  complete  identification  of  the  box,  lead  the  committee  to  decide,  with- 
out hesitation,  that  this  poll  should  stand  as  recounted. 

POLL  6 — STINGLE'S  STORE. 


135 


supervisor's  return.  recount. 

Dem.     Rep.    Total.    Blanks 

Acklen '. 156    Acklen 155        73        228 

Darrall 301    DarraU 99  99 

The  distribution  of  tickets. 

A.  J.  Barnes,  Eepublican  (Record,  p.  93),  says : 

I  was  United  States  supervisor  at  poll  No.  6  in  this  parish,  at  Stingle's  store. 

Q.  Mr.  Barnes,  who  distributed  the  Republican  tickets  in  your  ward  at  the  last 
election  ? — A.  Giles  Hunter,  Lycurgus  Bess,  and  Charles  Commeger,  and  myself. 

Q.  Who  received  those  tickets  from  Mr.  Wharton  ? — A.  Myself. 

Q.  Do  you  remember  what  kind  of  tickets  Mr.  Wharton  delivered  to  you  ? — A.  Yes, 
sir. 

Q.  State  the  kind. — A.  They  were  black-back  ti€ket8. 

Q.  Were  those  tickets  all  of  one  kind  as  regards  the  names,  or  were  there  such  tick- 
ets as  are  known  as  Acklen  tickets,  and  blank  tickets,  and  straight  tickets  T — ^A.  Yes, 
sir ;  there  were  some  with  Mr.  Acklen's  name  on  them,  and  some  with  Mr.  Darrall'a 
name  on  them,  and  there  was  some  blank  tickets  among  them. 

Q.  You  received  those  tickets  yourself  from  Mr.  Wharton  f — A.  Yes,  sir. 

Q.  What  did  you  do  with  them  ? — A.  I  took  them  over  the  river  and  gave  them  to 
Mr.  Bess  and  Giles  and  Mr.  Commeger.  They  were  in  town  at  the  time,  and  I  gave 
them  a  good  many  tickets  on  the  road  before  we  got  home. 

Q.  Were  those  tickets  distributed  around  among  Mr.  Wharton's  friends  on  the  morn- 
ing of  the  election  t — A.  A  great  many  of  them  were  distributed  over-night,  and  a 
great  many  of  them  were  distributed  next  day ;  there  were  a  great  many  distributed 
over-night.  I 

Q.  Did  Mr.  Wharton  instruct  you  how  to  have  those  tickets  distributed,  and  into 
whose  hands  to  have  them  placed  T — A.  Yes,  sir;  he  told  me  how  to  distribute  them — 
to  give  them  around  to  the  boys  to  give  out. 

Cross-examination  : 

Q.  Can  you  swear  positively  that  any  of  the  persons  to  whom  you  distributed  these 
Republican  tickets  with  Mr.  Acklen's  name  on  them  voted  them  at  the  poll  on  that 
day  ? — A.  Well,  I  can  undoubtedly  swear  that  some  of  the  tickets  that  I  distributed 
with  Mr.  Acklen's  name  on  them  did  get  voted  there. 

Q.  You  swear  to  that  fact  ? — A.  Yes,  sir ;  I  know  that. 

Q.  How  do  you  know  it  t — A.  Because  I  know  that  some  of  the  voters  came  right 
to  the  door  wh«re  they  were  voting,  and  they  came  in  with  the  green-back  tickets, 
and  they  said  they  wanted  the  black-back  tickets,  and  they  took  them  and  I  saw 
them  when  they  went  in. 


148  DIGEST    OF    ELECTION    CASES. 

Q.  Are  yon  certain  it  was  one  of  those  tickets  with  Mr.  Ackleu'd  uanie  on  them  ? — A. 
Yes,  sir ;  1  had  them  in  my  hands. 

Charles  Commeger,  Republican  (Record,  p.  99),  says  : 

Q.  Did  you  receive  and  distribute  any  black-back  Wharton  tickets  with  the  name  of 
J.  H.  Acklen  on  them  for  Congress  or  with  the  Congressman's  name  left  off  at  the  last 
election  f — A.  I  could  not  tell  whether  the  Congressman's  name  was  left  off,  but  I 
know  one  thing  :  that  Mr.  Acklen's  name  was  on  the  ticket.  I  did  not  know  the 
gentleman,  but  I  knew  it  was  Mr.  Wharton's  ticket,  and  we  all  wanted  to  vote  for  him 
in  the  seventh  and  fourth  wards;  and  so  we  would  have  taken  his  tickets.  The  prin- 
cipal part  of  the  fourth  ward  would  have  been  destroyed  in  his  name  if  he  was  on 
board  the  ship  and  she  going  to  be  sunk. 

Q.  From  whom  did  you  receive  those  tickets? — A.  From  Andrew  J.  Barnes. 

Giles  Hunter,  Republican  (Record,  p.  100),  says  : 

Q.  Did  you  distribute  any  tickets  on  the  day  of  election,  Mr.  Hunter  ? — A.  I  did,  sir. 

Q.  What  kind  of  tickets? — A.  Mr.  Wharton's  tickets — the  black  tickets. 

Q.  Did  any  of  those  tickets  that  you  have  mentioned  have  the  name  of  J.  H.  Acklen 
on  them  for  Congress  ? — A.  Yes,  sir. 

Q.  How  do  you  know  that  fact  ? — A.  Because  I  saw  it  myself  on  the  ticketH. 

Q.  Did  that  make  any  difference  in  the  distribution  of  the  tickets? — A.  No,  sir;  I 
do  not  think  it  did. 

Lycurguss  Bess,  Republican  (Record,  p.  97),  says : 

Q.  Mr.  Bess,  did  you  receive  and  distribute  any  of  the  Wharton  tickets  on  the  day 
of  the  election  with  J.  H.  Acklen's  name  on  them  or  with  the  Congressman's  name  left 
off? — A.  I  distributed  some  of  the  Wharton  tickets,  or  black  tickets,  with  J.  H.  Acklen's 
name  on  them,  but  who  the  men  were  that  I  gave  them  to  I  do  not  know.  I  did  not 
know  who  Mr.  Acklen  was,  but  I  understood  he  was  Mr.  Wharton's  friend,  and  I  was 
going  to  support  all  that  were  on  the  ticket  with  Mr.  Wharton,  even  if  it  was  a  rattle- 
snake. 

Q.  Who  gave  you  those  tickets  for  distribution  i — A.  Mr.  Andrew  J.  Barnes.  I  was 
np  here  on  the  day  he  got  them,  and  they  commenced  distributing  about  5  o'clock. 

Chas.  A.  Brusle  (Record,  p.  51)  says : 

Q.  State  where  you  were  at  the  election  of  November  7, 1876. — A.  I  was  in  ward  No. 
4,  at  poll  No.  6.     I  was  there  during  the  day. 

Q.  What  was  the  color  of  the  straight  Republican  tickets  in  this  parish? — A.  They 
had  a  black  back,  I  think. 

Q.  Did  you,  after  the  election,  ascertain  that  some  of  those  tickets  had  the  name  of 
J.  H.  Acklen  printed  on  them  ? — A.  During  the  day  I  did.  I  had  no  opportunities  of 
seeing  them  afterward,  because  I  was  not  at  the  polls  when  they  were  counting  the 
votes ;  I  went  home  before  the  count  was  made. 

Q.  Was  it  not  the  common  talk  and  rumor  in  the  parish  that  many  of  those  tickets 
bore  my  name  ? — A.  Yes,  sir ;  it  was  the  impression  throughout  the  parish  that  a  great 
many  of  them  did.  The  fact  is  that  it  was  supposed  that  you  would  carry  a  very  large 
vote. 

The  count  of  the  votes. 

Felix  Roth  (Record,  p.  55)  says : 

Q.  You  were  a  commissioner  there  ? — A.  Yes,  sir. 

Q.  Did  you  count  or  assist  in  counting  the  votes  there  ? — A.  I  did,  sir. 
Q.  Describe  the  way  in  which  the  votes  were  counted. — A.  The  tickets  were  piled 
in  three  different  lots. 

Cross-examination : 

Q.  You  certified  the  returns  from  that  poll  to  be  correct? — A.  Yes,  sir;  and  it  was 
correct  as  far  as  I  could  do  it,  sir.  The  only  thing  I  might  have  slipped  was  the 
name  in  this  case.  I  had  very  little  comfort  and  a  great  deal  of  difficulty.  It  wa« 
one  of  the  coldest  nights  that  I  ever  saw  in  my  life  and  I  had  no  fire.  That  was  the 
only  thing  that  might  have  happened ;  errors  might  have  happened.  I  do  not  pretend 
to  be  correct  in  every  case ;  I  tried  to  do  justice  to  both  parties. 

Thos.  Johnson,  at  poll  6  (Record,  p.  57),  says :  , 

Q.  Did  you  arrange  them  in  piles? — A.  Yes,  sir;  the  Republican  tickets  together. 


ACKLEN    VS.    DAERALL.  149 

"We  had  two  Republican  tickets,  the  blue  ticket  and  the  black  ticket,  and  then  we  had 
the  straight  Democratic  ticket.     We  counted  each  together. 

A.  J.  Barues,  United  States  supervisor  at  poll  6  (Eecord,  p.  94),  says: 

Q.  Explain  how  the  votes  were  counted  after  the  polls  were  closed. — A.  They  were 
taken  out  and  laid  on  the  table,  and  all  the  black  tickets  were  called  straight  Repub- 
lican tickets,  except  those  that  had  scratches  on  them,  which  were  laid  off  on  one  side. 
There  were  some  white  tickets  that  were  scratched  and  there  were  some  green  tickets 
that  were  scratched,  and  they  were  all  laid  aside.  Then  we  looked  where  the  scratches 
were  and  it  was  fixed  up. 

Q.  After  those  tickets  had  been  glanced  at  to  see  whether  they  were  scratched  or 
not,  and  assorted  out  in  piles,  were  they  then  counted  by  tens  and  twenties? — A.  To 
my  recollection  they  were  counted  ten  and  twenty  in  a  pile. 

Q.  In  the  way  in  which  those  tickets  were  counted  could  the  commissioners,  who 
were  looking  to  see  whether  they  were  scratched  tickets  or  not,  have  easily  overlooked 
the  name  of  J.  H.  Acklen  on  them  ? — A.  Without  any  doubt  they  could  have  overlooked 
a  name,  because  a  person  who  is  not  looking  at  any  one  name  particularly,  but  just 
taking  up  the  ticket  to  see  if  there  was  any  scratch  on  it,  would  just  see  if  there  was 
any  scratch,  and  then  lay  it  down  again. 

Cross-examination : 

Q.  Were  the  votes  first  taken  out  of  the  box  and  carefully  examined  by  some  one  of 
the  commissioners,  and  then  piled  up,  and  afterward  counted  in  bulk? — A.  They  were 
taken  out  by  Thomas  Johnson  and  laid  out  in  piles. 

Q.  Is  Thomas  Johnson  an  intelligent  man  ? — A.  Well,  he  can  read  and  write.  He 
was  a  commissioner. 

Q.  Did  the  Democratic  commissioner  examine  the  tickets  as  they  were  taken  out? — 
A.  No,  sir;  I  do  not  think  he  did.  I  think  the  only  one  who  took  them  out  after  the 
box  was  opened  was  Thomas  Johnson.  They  were  taken  out  by  Thomas  Johnson  and 
put  in  piles,  and  when  they  got  so  many  in  a  pile  they  would  mark  them  down.  Mr. 
Gourrier  was  there,  and  Mr.  Lorrisou,  and  Mr.  Bergeron. 

The  identification  of  the  box. 

E.  J.  Wilsou  (Record,  p.  268  says)  Darrall's  witness) : 

Q.  When  the  votes  weie  placed  back  in  the  box  how  was  the  box  sealed? — A.  We 
put  a  sheet  of  paper  right  over  the  key-hole,  and  then  we  put  the  tape  right  below  the 
key-hole,  and  then  we  sealed  it  and  signed  it. 

Q.  The  way  tliat  paper  was  placed  and  sealed  on  the  box,  if  the  box  had  been  un- 
locked and  opened,  would  the  paper  have  been  broken  ? — A.  Of  course. 

Q.  Then  it  would  have  been  impossible  for  that  box  to  have  been  opened  unless  the 
paper  was  broken  f — A.  Unless  the  paper  was  broken. 

Q.  Would  you  have  recognized  that  box,  and  could  you  have  told  whether  that  box 
had  been  tampered  or  interfered  with  by  the  appearance  of  that  paper  and  the  seals  ? — 
A.  Yes,  sir. 

Q.  You  are  certain  of  that  ? — A.  Yes,  sir. 

A.  J.  Barnes  (Record,  p.  59)  says: 

(The  box  of  poll  number  6  was  here  produced  by  the  clerk  of  the  court  for  identifi- 
cation. > 

Q.  Is  that  the  box  from  poll  6  ? — A.  Yes,  sir. 

Q.  Did  you  seal  that  box  yourself? — A.  Yes,  sir;  me  and  Mr.  Roth. 

Q.  Is  that  the  box  just  as  you  sealed  it  ? — A.  Yes,  sir  ;  it  seems  so. 

Q.  Examine  it  carefully,  please. — A.  It  seems  so. 

Q.  Yon  sealed  it  yourself,  did  you  ? — A.  Yes,  sir ;  me  and  Mr.  Roth  and  Mr.  Johnson. 
Mr.  Johnson  held  the  candle  for  me,  and  I  took  the  wax  and  dropped  it  on  here  with 
the  candle. 

Q.  Has  not  Mr.  Roth  defective  eyesight,  or  is  lie  not  near-sighted  ? — A.  Well,  I  never 
heard  him  say  anything  about  it. 

Cross-examined  by  Mr.  Jolley : 

Q.  Were  you  a  commissioner? — A.  I  was  a  supervisor. 

Q.  How  do  you  recognize  the  box  ? — A.  Well,  I  know  Johnson's  signature  and  this 
other  signature  of  Mr.  Wilson  very  well. 

Q.  Could  you  swear  to  that  signature  and  to  that  one?— A.  Yes,  sir. 

Q.  Could  you  swear  to  that  other  one? — A.  Well,  I  have  uot  seen  his  as  often.  This 
gentleman,  Mr.  Wilson,  learned  me;  I  went  to  school  to  him. 

Q.  Yon  sealed  that  box  yourself  ?—,\.   Ye^s,  sir:  me  and  Mr.  Roth. 


150  DIGEST  OF  ELECTION  CASES. 

Q.  You  sealed  the  box  ? — A.  Yes,  sir ;  I  do  not  know  which  one  held  the  candle,  bat 
I  and  Thomas  Johnson  and  all  the  rest  were  there,  and  when  I  sealed  it  I  know  I  was 
very  careful  in  sealing  it  up.     Johnson  was  holding  the  candle  and  the  wax. 

Q.  Did  they  put  their  names  on  the  key-hole  ? — A.  They  put  them  there  on  top. 

Q.  Did  Mr.  Roth  put  his  name  on  the  key-hole  f — A.  He  put  his  name  somewhere ;  I 
did  not  notice  whether  he  put  it  on  the  key-hole. 

Q.  How  did  you  know  that  he  put  his  name  on  the  box  T — A.  Because  I  was  stand- 
ing right  alongside  of  him ;  we  were  very  careful  about  it ;  all  of  ua  were  very 
careful. 

Mr.  Darrall  introduces  E.  J.  Wilson  as  a  witness  as  to  this  poll,  who 
states  there  were  no  blank  or  Acklen  tickets  at  the  poll;  that  none  were 
distributed,  none  voted,  and  none  in  the  box,  as  he  examined  each  and 
every  name  on  each  and  every  ticket ;  but  on  cross-examination  savs 
(Eecord,  pp.  266,  267,  268) : 

Q.  Mr.  Wilson,  how  many  kinds  of  Republican  tickets  were  voted  at  your  poll?— A. 
Two. 

Q.  Describe  them. — A.  The  blue  ticket  and  the  black  ticket. 

Q.  Did  you  distribute  any  of  the  black-back  tickets? — A.  No,  sir. 

Q.  In  the  house  ? — A.  Right  in  the  house,  sitting  down  to  the  table. 

Q.  Were  you  there  all  day  ? — A.  All  day ;  never  had  a  chance  to  go  to  get  my  dinner ; 
had  my  dinner  there. 

Q.  Y'ou  did  not  go  out  at  all? — A.  No,  sir. 

Q.  I  understand  you  to  say  that  you  distributed  the  blue-tickets,  and  not  the  black 
tickets! — A.  Yes,  sir;  I  distributed  the  blue  tickets,  but  not  the  black. 

Q.  Who  assisted  you  in  counting  these  votes  7 — A.  Well,  there  was  Mr.  Roth  and 
Thomas  Johnson  and  myself. 

Q.  Did  you  keep  any  of  the  tally-sheets ?— A.  I  kept  the  tally-sheets;  yes,  sir,  all 
the  time ;  and  it  was  correct  with  the  tickets  that  come  out  of  the  box. 

Q.  I  mean,  who  kept  the  tally-sheet  when  you  counted  all  the  tickets  at  night? — A. 
I  kept  the  tally-sheet. 

Q.  When  the  tickets  were  taken  out  of  the  box  were  they  not  arranged  in  separate 
piles? — A.  Yes,  sir. 

Q.  Then,  when  the  number  of  Republican  tickets  were  given  to  be  tallied  down, 
were  they  not  called  out  in  this  way — so  many  straight  Republican  tickets,  so  many 
straight  Democratic  tickets ;  and  then  were  not  the  scratched  tickets  taken  out  and 
read  separately? — ^A.  Yes,  sir;  separately,  one  by  one. 

Q.  When  the  tally  was  made,  was  each  straight  Republican  ticket  taken  up  and 
read,  every  name  off,  or  was  the  bundle  counted  through  and  then  tallied? — A.  We 
taken  ten  straight  tickets  out.  I  examined  ten  straight  tickets  one  at  a  time,  and,  of 
course,  we  put  them  down  ;  then  we  took  that  tally  off,  and  then  we  would  take  ten 
more  straight  tickets,  and  we  would  put  them  down,  and  we  continued  that  way  until 
the  box  was  through ;  and  all  the  scratched  tickets  we  called  them  one  by  one,  name 
by  name. 

Q.  Now,  you  stated  that  you  particularly  examined  these  scratched  tickets  your- 
self?— A.  Yes,  sir. 

Q.  And  are  certain  that  Dr.  Darrall  was  not  scratched  on  any  of  them  ? — A.  Yes,  sir. 

Q.  Did  Dr.  Darrall  get  the  full  Republican  vote  at  that  poll  ? — A.  Yes,  sir. 

Q.  You  are  certain  of  that? — A.  I  am  certain  of  that. 

Q.  If  he  had  been  scratched  on  three  or  four  tickets  would  you  have  noticed  it? — 
A.  Yes,  sir;  because  we  called  aU  the  aames  off  the  scratched  tickets;  we  called  them 
out  separately,  one  by  one,  every  name  on  the  ticket. 

Q.  You  say  that  Dr.  Darrall  got  the  full  Republican  vote  of  that  poll? — A.  Yes,  sir. 

Q.  Here  is  a  certified  copy  of  the  consolidated  vote  of  the  parish  of  Iberville.  What 
is  the  vote  for  Dr.  Darrall  at  your  poll  on  that  paper?  (Consolidated  return  presented 
to  witness.)— -A.  Three  hundxed  and  one  for  Dr.  Darrall. 

Q.  What  is  the  vote  for  Governor  Packard  there? — A.  Three  hundred  and  eight. 

Q.  For  C.  C.  Antoine? — A.  Three  hundred  and  eight. 

Q.  I  understood  you  to  say  that  Dr.  Darrall  received  the  full  Republican  vote  at  that 
poll  ? — A.  Yes,  sir. 

Q.  How  do  you  account  for  the  fact  that  he  falls  seven  votes  behind  Governor  Pack- 
ard, according  to  the  returns?— A.  I  could  not  tell  anything  about  that. 

Q.  Has  not  Mr.  Felix  Roth  got  defective  eyesight? — A.  Yes,  sir;  can't  see  without 
spectacles  at  night. 

Q.  Examine  those  tickets  Mr.  Wilson.  (Black-back  tickets  presented  to  the  wit- 
ness.; Did  you  discover  any  difference  in  them? — A.  There  is  a  difference  in  one  or 
two  of  them. 

Q.  What  is  the  difference  ? — A.  I  see  your  name  in  place  of  Darrall's. 

Q.  Is  there  any  other  differedce? — A.  No,  sir. 


ACKLEN    VS.    DARRALL.  151 

Q.  Was  this  black  ticket  the  black-back  ticket,  as  well  as  you  remember,  that  was 
-voted  at  your  poll  6? — A.  Yes,  sir;  I  could  tell  you  better  if  I  had  a  pair  of  specta- 
•cles. 

Q.  Are  you  troubled  with  weak  eyesT — A.  Sometimes  I  am,  and  sometimes  I  can  see 
pretty  well.  > 

Q.  Did  you  have  your  own  spectacles  that  night  T — A.  No,  sir;  I  borrowed  Mr.  Felix 
Roth's. 

Q.  How  did  Mr.  Felix  Roth  manage  to  see  without  his  spectacles? — A.  When  I  got 
through  I  passed  them  to  him. 

Q.  How  long  did  he  lend  you  his  spectacles! — A.  For  the  time  that  I  needed  them. 

Q.  How  long  did  you  need  them  ? — A.  I  did  not  need  them  more  than  twenty-five 
or  thirty  minutes  at  a  time.     Then  when  he  needed  them  I  would  give  them  to  him. 

Q.  What  were  you  doing  when  he  had  the  spectacles  T — A.  Well,  I  was  counting 
out  the  votes,  and  so  on. 

Q,  Did  you  handle  all  the  tickets  while  Mr.  Roth  had  the  spectacles? — A.  No,  sir; 
I  did  not. 

Q.  Did  Mr.  Roth  handle  any  of  the  tickets  while  you  had  the  spectacles? — A.  No, 
sir. 

Q.  You  always  use  spectacles? — A.  Not  at  all  times;  only  when  it  troubles  me. 

Q.  Would  your  eyes  be  likely  to  trouble  you  in  examining  carefully  any  small  prints 
for  five  or  six  or  seven  or  eight  hours  in  succession  ? — A.  But  it  sometimes  don't ;  some- 
times I  could  read  all  day  and  sometimes  I  could  not. 

Q.  Do  you  think  that  you  could  read  all  day  and  read  all  night,  too,  without  your 
•eyes  affecting  you? — A.  No,  sir;  I  could  not  do  that. 

Q.  What  sort  of  light  did  you  have  in  your  room? — ^A.  We  had  candles;  some  five 
or  six. 

Q.  Where  were  the  candles  placed? — A.  They  were  placed  all  around  the  box,  ao 
that  we  could  have  plenty  of  light  to  see. 

Q.  Was  the  night  a  cold  and  disagreeable  night? — A.  Yes,  sir. 

Q.  Have  fire  in  the  room  ? — A.  We  did  not  have  any  fire.  We  had  no  place  to  make 
the  fire.     It  had  been  a  gin-house. 

Q.  The  wind  came  in,  then? — A.  No,  sir;  there  was  no  wind.  It  was  perfectly 
closed,  but  we  had  no  place  to  make  the  fire. 

Q.  Were  you  comfortable  there? — A.  We  were  tolerably  comfortable,  only  our  toes 
bothered  Us  from  the  cold. 

Q.  You  suffered  a  good  deal  from  the  cold? — A.  Yes,  sir;  although  there  was  no 
wind  to  get  to  us. 

Q.  Were  you  not  all  pretty  anxious  to  get  through  the  count? — A.  Yes,  sir;  we 
were. 

Thomas  Johnson,  colored,  Eepublican  commissioner  at  poll  Ifo.  6, 
says  (Darrall's  witness) : 

Q.  Did  you  assist  in  counting  the  votes  at  your  poll  after  the  election? — A.  Yes,  sir. 

Q.  Did  you  examine  any  tickets  yourself? — A.  The  tickets  were  counted  in  bulk,  by 
tens  and  twenties. 

Q.  Who  took  the  tickets  out  of  the  box? — A.  I  did. 

Q.  Did  you  look  at  them  as  you  took  them  out  of  the  box? — A.  No,  sir;  just  put  all 
the  Republican  tickets  to  themselves  and  all  the  Democratic  tickets  to  themselves. 
There  were  two  Republican  tickets  running ;  a  blue  ticket  and  a  black  Republican 
ticket.  The  Democratic  ticket  was  a  white  ticket ;  one  Republican  ticket  with  a  black 
back,  and  then  the  other  was  blue.  We  had  taken  the  blue  tickets  and  counted  them 
to  themselves  in  bulk,  and  the  black  tickets  likewise,  and  then  the  Democratic  tickets 
the  same ;  but,  as  counting  out,  one  by  one,  we  did  not  do  it. 

Q.  Did  you  examine  the  face  of  any  of  the  tickets  yourself? — A.  Only  examined 
one.  I  had  twenty  in  bulk,  and  one  I  just  called  the  names  from  as  I  walked.  I 
just  called  off  the  names,  so  many  and  so  many  votes,  from  just  the  first  one.  I  didn't 
take  them  all  and  examine  them  through;  I  didn't  examine  them  aU  through. 

Q.  What  did  Mr.  Wilson  do?  Did  he  examine  tickets? — A.  No,  sir;  he  didn't  ex- 
amine them  through,  I  don't  believe. 

Q.  Did  he  examine  the  tickets  at  all? — A.  Just  stood  there  and  took  them  away 
from  me,  as  I  counted  them  out  in  twenties. 

Q.  Did  other  oflScers  examine  the  tickets? — A.  No,  sir;  the  Republicans  were  to 
themselves,  and  the  Democrats  likewise. 

Q.  You  say  you  counted  them  in  bulk  ;  did  you  take  them  in  bulk  of  tens  of  twen- 
ties ? — A.  In  twenties. 

Q.  The  straight  tickets? — A.  Yes,  sir  ;  and  the  scratched  tickets  we  laid  aside  until 
we  got  through,  then  we  counted  them  last.  There  were  some  names  that  were 
scratched  out;  we  couldn't  c  )uut  them  m  bulk  with  the  others;  we  counted  them  to 
themselves. 


152  DIGEST    OF    ELECTION    CASES. 

Cross-examination : 

Q.  Then  there  could  have  been  tickets  with  my  name  on  them? — A.  There  could 
have  been  tickets  with  your  name  on  them,  but  we  counted  them  in  bulk ;  we  didn't 
examine  them  close ;  didn't  have  time  to  count  them  one  by  one. 

Q.  Did  you  see  the  box  sealed? — A.  Yes,  sir  ;  I  saw  it  sealed. 

Q.  Was  the  box  not  sealed  with  a  paper  sealed  on  top,  the  place  where  the  votes  go- 
in,  then  the  paper  carried  over  the  side  of  the  box  and  down  over  the  key  hole,  and 
sealed  there  again  ? — A.  Yes,  sir ;  it  was  sealed  where  the  tickets  go  in  and  sealed  ovei 
the  key-hole  also. 

Q.  And  the  paper  carried  over  the  edge  of  the  box  ? — A.  Yes,  sir. 

Q.  Then  the  box  couldn't  have  been  opened  without  breaking  that  paper  or  seals, 
could  it?— A.  No,  sir;  it  could  not  have  been  opened  except  by  breaking  those  papers 
ofi. 

The  committee  find  the  proof  of  the  distribution  and  voting  of  these 
Ackien  and  blanks  at  this  poll  complete,  likewise  the  identification  o£ 
the  box  as  being  intact,  to  have  been  beyond  question.  The  proof  as  to 
the  count  of  the  votes  in  bulk  is  in  no  wise  questioned  save  by  the  tes- 
timony of  contestee's  witness  Wilson,  which  has  been  quoted  at  length, 
and  this  is  rebutted  by  that  of  this  other  witness,  Johnson,  whose  testi- 
mony is  flatly  contradictory  of  that  of  Wilson. 

The  committee  are  clearly  of  the  opinion  that  this  poll  should  stand 
as  recounted. 

At  poll  7  the  distribution  of  these  Ackien  and  blank  tickets  is  proven 
by  Chrs.  Commyer  (Eeport,  pp.  99  and  100).  The  votes  are  shown  to 
have  been  counted  in  bulk  by  the  testimony  of  Adonis  Le  Blanc,  com- 
missioner (Report,  p.  58).  Nor  are  the  facts  set  forth  suflBciently  ques- 
tioned or  controverted  in  the  testimony  of  the  only  witness  the  contestee 
produces  at  this  poll,  viz,  J.  M.  Carville  (Report,  p.  197) ;  but  when  the 
box  previous  to  the  recount  was  presented  to  the  witness  Le  Blauc,  he 
was  not  able  to  identify  it,  and  although  in  the  opinion  of  this  commit- 
tee its  identity  is  sufficiently  established  by  the  testimony  of  C.  H. 
Gordon  and  James  Crowell,  the  present  and  former  clerks,  yet  this 
committee,  out  of  abundant  caution,  conclude,  as  the  names  of  the  com- 
missioners were  not  written  on  the  box,  to  let  it  stand  as  originally 
counted  in  favor  of  contestee,  as  it  does  not  affect  the  result,  although 
they  would  feel  justified  in  accepting  the  recount  at  this  poll. 

CONCLUSIONS. 

Your  committee,  reviewing  the  entire  case,  are  led  to  the  following 
conclusions : 

First.  They  disregard  the  return  of  the  vote  made  by  the  Wells-An- 
derson return  in  g-board  because  of  the  most  flagrant  fraud,  and  of  the 
exercise  of  judicial  power  by  said  board  by  arbitrarily  for  no  other  rea- 
son than  to  achieve  a  result  in  accordance  with  their  will. 

Second.  They  adopt  the  count  of  the  votes  as  declared  by  the  present 
legal  board  of  canvassers  in  all  the  parishes  except  those  of  Saint  Mar- 
tin's, La  Fourche,  and  Iberville.  That  board  counted  the  vote  actually 
cast,  and  returned  it  without  the  exercise  of  judicial  powers  and  without 
disfranchising  any  portion  of  the  people.  It  is  composed  of  men  of  high 
character,  Republicans  and  Democrats,  and  there  is  every  reason  to  give 
full  faith  and  credit  to  its  official  acts. 

The  committee  adopt  the  returns  of  this  board,  as  shown  by  the  table 
here  below  quoted. 

But  the  board  of  canvassers  omitted  from  their  count  the  vote  of 
Saint  Martin's,  declaring  the  returns  from  that  parish  (Record,  p.  13) 
to  be  forged.    But  there  is  no  other  proof  of  this  fact,  and  the  committee 


ACKLEN    VS.    DAKKALL. 


153 


adopt  the  current  agreement  of  contestee  and  contestant  (Record,  p. 
172)  with  regard  to  said  parish,  and  therefore  return  it  as  follows  : 


Saint  Martin's 


C.  B.  DarralL 
1,095 


J.  H. 


Acklen. 
1,027 


In  the  parish  of  La  Fourche,  the  committee,  in  full  accordance  with  the 
proof  and  the  decree  of  the  supreme  court  of  Louisiana  iu  the  case  of 
Welre  ij. Wilton  (Eecord,  p.  2),  reject  the  vote  of  poll  17,  where  86  votes 
were  cast  for  contestee,  and  return  said  parish  as  follows : 

C.  B.  Darrall.     J.  H.  Acklen. 
La  Fourche 1,929  2,086 

In  the  parish  of  Iberville  the  committee  adopt  there  count  of  the 
votes  at  polls  No.  2,  3,  4, 5,  and  6,  as  per  tabulated  statement  here  below 
given,  and  return  said  parish  as  follows : 

C.  B.  Darrall.     J.  H.  Acklen. 
Iberville  Parish 1,423  1,468 

Having  thus  considered  these  polls  seriatim,  the  committee  decide 
the  following  to  be  the  proper  and  just  vote  for  the  parish  of  Iberville, 
viz: 


Poll. 

Acklen. 

44 

340 

219 

64 

158 

228 

58 

59 

250 

33 

45 

DarralL 

1 

218 

2 

86 

3 

189 

4 

105 

5 

79 

6 

99 

7 

187 

8 

55 

9 

122 

10 

19a 

11 

90 

■ 

1,468 

1,423 

Or  a  majority  in  this  parish  for  the  contestant  of  45  votes.  And  in  the 
entire  district  the  committee  decide  that  the  following  table  shows  the 
proper  and  just  vote  as  cast  in  the  different  parishes  for  the  contestant 
and  contestee : 


Names  of  parishes. 

S 
< 

Yota. 

2,059 

1,692 

1,966 

2,386 

1,465 

061 

228 

91 

69 

1,929 

.      1,095 

•      1,423 

Totes. 
1,215 

1.679 

1,393 

1,423 

Iberia .. .... 

1.242 

La  Fayette 

1,157 

Vermillion ....... ... 

955 

Galcasiea . 

1,291 

225 

2,08« 

1,027 

1,468 

Total 


15,053 


15, 161 


Or  a  majioritv  in  the  entire  district  for  the  contestant  of  108  votes. 


154  DIGEST  OF  ELECTION  CASES. 

Your  committee  therefore  recommend  for  passage  by  the  House  of 
Eepresentatives  the  following  resolutions  : 

Resolved,  That  Chester  B.  Darrall  was  not  elected  and  is  not  entitled 
to  a  seat  in  the  House  of  Eepresentatives  from  the  third  Congressional 
district  of  Louisiana. 

Resolved,  That  Joseph  H.  Acklen  was  elected  and  is  entitled  to  a  seat 
in  the  House  of  Representatives  from  the  third  Congressional  district 
of  Louisiana. 

JOHN  T.  HARRIS. 

WILLIAM  M.  SPRINGER. 

MILTON  A.  CANDLER. 

iJAC.  TDRNEY. 

THOS.  R.  0  )BB. 

JERE.  N.  WILLIAMS. 

E.  JNO.  ELLIS. 


Mr.  Price,  from  the  Committee  of  Elections,  submitted  the  following 

VIE  ws. 

An  examination  of  this  case  discloses  the  following  facts : 
The  third  Congressional  district  of  Louisiana  is  composed  of  the  par- 
ishes of  Ascension,  Assumption,  Terre  Bonne,  Saint  Mary,  La  Fayette, 
Vermillion,  Calcasieu,  Cameron,  La  Fourche,  Saint  Martin,  and  Iber- 
ville. On  the  7th  day  of  November,  1876,  an  election  was  held  in  this 
Congressional  district  for  a  member  of  the  Forty-fifth  Congress,  and 
after  the  election,  and  after  the  votes  at  the  polls  at  all  the  parishes 
had  been  counted  by  the  legally-authorized  officers,  and  the  returns 
made  as  required  by  law,  the  following  certificate  of  election  was  issued : 

State  of  Louisiana,  Executive  Department, 
Third  District  of  Louisiana,  New  Orleans,  December  28,  1876. 
Be  it  known  that  at  an  election  begun  and  held  on  the  7th  day  of  November,  A.  D. 
1876,  for  members  of  Congress,  Chester  B.  Darrall  received  15,626  votes,  and  Joseph 
H.  Acklen  received  13,533  votes. 

Now,  therefore,  I,  William  Pitt  Kellogg,  governor  of  the  State  of  Louisiana,  do 
hereby  certify  that  Chester  B.  Darrall  received  a  majority  of  the  votes  cast  at  said 
election,  and  is  duly  and  lawfully  elected  to  represent  the  third  Congressional  district 
of  the  State  of  Louisiana  in  the  Forty-fifth  Congress  of  the  United  States. 

Given  under  my  hand  and  the  seal  of  the  State  this  28th  day  of  December,  A.  D. 
1876,  and  of  the  Independence  of  the  United  States  the  one  hundred  and  first. 

WM.  P.  KELLOGG. 
By  the  governor: 
[seal.]        p.  G.  Deslondk, 

Secretary  of  State. 

From  which  it  appears  that  Chester  B.  Darrall  was  legally  elected  as 
a  Representative  to  the  Forty-fifth  Congress  from  said  third  district  of 
Louisiana. 

Subsequent  to  this,  and  after  the  inauguration  of  the  NichoUs  gov- 
ernment, a  law  was  passed  creating  a  new  returning-board,  and  this 
new  board,  created  under  a  new  law,  proceeded  to  a  recanvass  of  the 
same  returns  for  the  same  office  for  the  same  district,  and,  after  a  full 
canvass.  Governor  Nicholls  issued  the  following  certificate  of  election  : 

United  States  of  America, 
Executive  Department,  State  of  Louisiana. 
This  is  to  certify  that  at  a  general  election,  begun  and  held  in  the  State  of  Louisiana, 


ACKLEN    VS.    DAERALL.  155 

and  in  the  third  Cougressioual  district  of  said  State,  on  the  7th  day  of  November,  lcr76, 
it  beiug  the  first  Tuesday  after  the^rst  Monday  in  said  mouth,  and  the  day  prescribed 
by  the  laws  of  the  United  States  and  the  said  State  of  Louisiana  for  the  election  of 
Representatives  in  Congress  from  the  said  State,  C.  B.  Darrall  and  Joseph  H.  Acklen 
appear  from  the  returns  of  said  election,  filed  in  the  office  of  the  secretary  of  state, 
within  and  for  said  State,  to  have  been  the  only  persons  voted  for  in  the  third  Con- 
gressional district  of  said  State  for  Representative  in  the  Forty-fifth  Congress  of  the 
United  States  from  said  State  ;  and  that  it  further  appears  from  said  returns  on  file  and 
of  record  in  said  office  that  C.  B.  Darrall  15,786  votes  and  Joseph  H.  Acklen  received 
14.692  votes  for  Representatives  as  aforesaid  in  said  district ;  and  that  C.  B.  Darrall, 
having  received  a  majority  of  the  votes  cast  for  Representative  from  the  third  district, 
in  said  State  of  Louisiana,  in  the  Forty-fifth  Congress  of  the  United  States  of  America 
at  said  election,  has  been  duly,  lawfully,  and  regularly  elected  to  represent  said  third 
district  of  said  State  in  the  aforesaid  Congress  of  the  United  States,  in  accordance 
vrith  the  laws  of  the  United  States,  and  of  the  State  of  Louisiana. 

FRANCIS  T.  NICHOLLS, 
Gorernor  of  the  State  of  Louisiana. 

We,  Francis  T.  Nicholls,  governor  of  the  State  of  Louisiana,  and  Oscar  Arroys,  assist- 
ant secretary  of  state  of  said  State,  do  hereby  certify  that  the  above  and  foregoing 
declaration  of  the  result  of  the  election  begun  and  held  in  the  third  Congressional 
district  of  the  State  of  Louisiana  on  the  7th  day  of  November,  1876,  is  a  true  copy  of 
the  original  certificate,  as  recorded  in  the  office  of  the  secretary  of  state  of  the  State 
of  Louisiana,  by  the  secretary  of  state,  and  signed  by  the  governor. 

Witness  our  hands  and  the  seal  of  the  State  of  Louisiana,  at  the  city  of  New  Or- 
leans, this  27th  day  of  February,  1877. 

FRANCIS  T.  NICHOLLS, 
Gorernor  of  the  State  of  Louisiatta. 
Oscar  Arboys, 

Jssistant  Secretary  of  State. 

From  which  it  appears  that  Chester  B.  Darrall,  the  same  man  for  the 
same  office,  was  elected. 

By  the  Kellogg  retnrniug-board  Darrall's  majority  is  2,093,  and.  by 
the  JiTicliolls  returning-board  it  is  1,094. 

The  difference  in  majorities  arises  in  this  way :  in  making  the  returns  on 
which  the  first  certificate  was  given,  the  supervisors  of  registration  had 
rejected  polls  in  parishes  as  follows  :  Poll  4,  Iberia  Parish  :  polls  1  and 
3,  La  Fayette  Parish;  polls  2  and  10,  La  Fourche  Parish  (remember 
that  these  were  rejected  by  the  parish  officer  and  never  came  to  the  re- 
turniug-board ;  and  poll  2,  in  La  Fayette  Parish,  was  rejected  by  the 
returning-board.  These  polls  being  rejected,  left  the  majority  of  con- 
testee  2,093,  as  above. 

But  when  the  Democratic  returning-board  came  to  make  up  their 
returns,  they  included  all  of  the  polls  rejected,  and  that  gave  con- 
testee  a  majority  of  1,094.  as  above  stated.  These  Democratic  returns 
were  made  from  the  copies  of  the  original  papers  on  file  in  the  clerk's 
offices  of  the  various  parishes  of  the  district,  and  are  submitted  by  con- 
testant as  evidence.    (See  pp.  14,  15,  16,  17  of  the  Eecord.) 

A  new  canvass  of  all  the  votes  of  all  the  polls  in  all  the  parishes 
having  been  made  by  a  returning-board  created  by  contestant's  political 
friends,  and  the  result  being  still  against  him,  some  other  plan  must  be 
devised  to  accomplish  his  purpose,  and,  therefore,  four  months  after  the 
election,  and  two  mouths  after  it  is  the  duty  of  any  person  to  protect 
and  keep  safely  the  ballot-boxes  in  which  the  votes  cast  at  said  election 
were  deposited,  the  contestant  procured  a  recount  of  the  ballots  then 
found  in  the  boxes  in  the  parish  of  Iberville,  and  upon  this  recount,  and 
upon  that  alone,  does  he  now  base  his  claim  for  the  seat.  If  the  re- 
count had  been  made  within  the  time  required  by  law  that  the  ballots 
should  be  carefully  preserved,  and  the  boxes  had  been  deposited  and 
kept  as  the  law  required,  some  weight  might  be  given  to  the  recount, 
though  McCrary  on  Elections,  sees.  93, 96,  277,  279,  is  authority  against 


156  DIGEST    OP    ELECTION    CASES. 

it.    But  neither  of  these  conditions  has  been  complied  with,  and  con- 
sequently the  recount  is  of  no  effect. 

We  quot€: 

McCrary  on  Elections,  section  93 : 

A  canvassing-board  having  once  counted  the  votes,  and  declarad  the  result  accord- 
ing to  law,  has  no  power  or  authority  to  make  a  recount.  When  this  duty  is  once 
fully  performed,  it  is  performed  once  aud  forever  and  cannot  be  repeated."  (Bowen 
V8.  Hexon,  4.5  Mo.,  350;  Gooding  vs.  Wilson,  Forty-second  Congress.) 

In  the  former  case  the  court  say : 

To  suytposethat  it  could  be  renewed,  that  the  canvass  of  one  day  could  be  repeated 
the  next,  and  counter-certilicafcesbe  issued  to  difl'ercnt  contestants  as  new  light  or  in- 
fluence was  brought  to  bear  upon  the  mind  of  the  clerk,  would  render  the  whole  pro- 
ceeding a  farce. 

And  in  the  latter  case  the  report  of  the  committee  has  this  language : 

On  examination  of  the  precedent  it  does  not  appear  that  this  House  favors  the  set- 
ting aside  of  oflBcial  and  formal  counts  made  with  all  the  safeguards  required  by  law, 
on  evidence  only  of  subsequent  informal  and  unofficial  counts  without  such  safeguards. 
No  instance  was  cited  at  the  hearing  where  the  person  entitled  by  the  official  count 
was  deprived  of  his  seat  by  a  subsequent  unofficial  count.  On  principle,  it  would 
seem  that  if  such  a  thing  were,  in  the  absence  of  fraud  in  the  official  count,  in  any 
case  admissible,  it  should  be  permitted  only  when  the  ballot-boxes  had  been  so  kept 
as  to  be  conclusive  of  the  identity  of  the  ballots,  and  when  the  subsequent  count  wa» 
made  with  safeguards  equivalent  to  those  provided  by  law.  In  the  absence  of  either 
of  these  conditions,  the  proof,  as  mere  matter  of  fact,  and  without  regard  to  statu- 
tory rules,  would  be  less  reliable  and  therefore  insufficient. 

McCrary  on  Elections,  section  96 : 

In  Kline  vs.  Myers  (1  Bartlett,  574)  the  House  refused  to  order  a  recount  of  ballots 
upon  the  request  of  contestant.  One  reason  was  that  the  contestant  did  not  offer 
evidence  sufBcient  to  show,  even  presumptively,  that  the  original  count  was  errone- 
ous or  fraudulent.  But  another  reason  was  the  great  danger  of  attempting  to  set 
aside  the  official  count  by  a  reopening  of  the  boxes  and  a  recount  of  the  ballots 
months  after  the  election.  And  upon  this  latter  point  the  committee,  in  their  report, 
say:  "To  adopt  a  rule  that  the  ballot-boxes  should  be  opened  upon  the  mere  request 
of  the  defeated  candidate  would  occasion  more  fraud  than  it  could  possibly  expose. 
The  number  of  ballot-boxes  in  each  Congressional  district  is  seldom  less  than  fifty, 
and  often  more  than  two  hundred.  They  are  usually  left  in  the  care  of  a  magistrate 
or  some  township  officer,  by  whom  they  are  deposited  in  no  safer  place  than  an  upper 
shelf  in  a  public  office.  The  opportunities  of  tampering  with  the  boxes  thus  scat- 
tered through  the  district  would  be  abundant,  and  if  it  were  known  in  advance  that 
a  second  count  could  be  had  without  discrediting  the  first  the  temptation  to  do  so 
would  be  strong." 

It  should  be  remembered  that  the  fact  sought  is  not  what  the  ballot-boxes  contain 
six  months  or  a  year  after  the  election,  but  what  they  did  contain  after  the  last  vote 
was  deposited  on  the  day  of  election. 

Certainly  an  impartial,  accurate,  and  public  count  then  by  the  sworn  officers  would 
be  better  evidence  of  that  fact  than  any  subsequent  count,  not  more  impartial,  and 
not  presuming  to  be  more  accurate  than  the  first,  and  after  the  boxes  had  long  been 
exposed  to  the  tampering  of  dishonest  partisans. 

McCrary  on  Elections,  section  277  : 

Where,  as  is  the  case  in  several  of  the  States,  the  statute  provides  a  mode  of  pre- 
serving the  identical  ballots  cast  at  an  election  for  the  purpose  of  being  used  as 
evidence  in  case  of  contest,  such  statute,  and  particularly  those  provisions  which 
provide  for  the  safe-keeping  of  such  ballots,  must  be  followed  with  great  care.  The 
danger  that,  after  the  count  is  made  (especially  if  the  vote  is  very  close),  the  ballots 
may  be  tampered  with,  is  so  great  that  no  opportunity  for  such  tampering  can  be 
permitted.  Such  ballots,  in  order  to  be  received  in  evidence,  must  have  remained  in 
the  custody  of  the  proper  officer  of  the  law  from  the  time  of  the  original  count  until 
they  are  produced  before  the  proper  court  or  officer,  and  if  it  appear  they  have  been 
handled  hy  unauthorized  persons,  or  that  they  have  been  left  in  an  exposed  or  im- 
proper place,  they  cannot  be  offered  to  overcome  the  official  count.  See  Gooding  vs. 
Wilson  (Forty-second  Congress),  Butler  vs.  Lehman  (1  Bartlett,  354),  Kline  vs.  Verru 
(ibid.,  381). 


ACKLEN    VS.    DARRALL.  157 

III  Butler  vs.  Lehmau  the  House  of  Representatives,  after  a  full  dis- 
cussion, sustained  the  minority  of  the  committee  in  rejecting  ^  recount 
upon  the  ground  that  tfie  ballot-boxes  had  not  been  so  kept  as  to  rebut 
a  reasonable  presumption  that  they  had  been  tampered  with. 

McCrary  on  Elections,  section  279 : 

The  case  of  Archer  rs.  Allen  (1  Bartlett,  169)  is  another  case  in  which  there  was  a 
recount  of  the  ballots  after  the  official  count  had  been  made  and  the  result  aunonuced. 
The  ofiicial  canvass  showed  the  electiou  of  the  incunibeut  by  a  majority  of  onlj'  one 
vote.  The  recount,  which  was  luade  four  months  after  the  election,  resulted  in  the 
alleged  discovery  of  a  mistake  of  two  votes  iu  favor  of  contestant,  just  sufficient  to 
change  the  result.  The  necessity  for  proving  affirmatively  that  the  ballot*  had  not 
been  tampered  with  seems  to  have  been  felt  and  concede«l  by  the  contestant,  and  a 
good  deal  of  testimony  was  taken  upon  that  point,  enough,  according  to  the  report 
of  the  majority  of  the  committee,  to  make  it  clear  that  the  ballots  counted  at  the 
second  aud  unofficial  count  were  the  identical  ballots  originally  deposited  in  the  box. 
The  minority  of  the  committee,  however,  took  the  opposite  view  and  insisted  that 
the  proof  of  identity  was  insufficient. 

After  an  elaborate  debate  in  the  House,  the  report  of  the  majority,  declaring  the 
incumbent  not  duly  elected,  was  adopted,  but  the  resolution  giving  the  seat  to  the 
contestant  was  lost,  and  the  seat  thereby- became  and  was  declared  vacant. 

CAREFULNESS  OF   THE   OFFICIAL,  COUNT. 

The  correctness  of  the  first  count  of  the  ballots  is  established  by  the 
testimony  of  the  officers  of  election,  both  Republican  and  Democratic. 

Poll  1. — The  three  commissioners  of  election,  Piernas,  Roth,  and 
Dubuclet,  testified,  and  Verrett,  one  of  the  supervisors — 

Amadee  Roth,  Democrat  (p.  56): 

Q.  How  did  you  count  the  votes  at  that  poll? — A.  Well,  we  counted  them  in  this 
way  :  we  took  all  the  straight  tickets  of  each  side  and  set  them  aside,  and  then  the 
scratched  tickets. 

Q.  What  was  the  color  of  the  straight  Republican  ticket  ? — A.  Black. 

Q.  Did  you,  after  the  election,  hear  any  one  state  that  the  name  of  J.  H.  Acklen 
had  been  on  auy  of  the  Republican  tickets? — A.  I  did  after  the  election. 

Q.  In  the  way  iu  which  those  tickets  were  counted  by  you,  could  the  name  of  J. 
H.  Acklen  have  been  on  some  of  them  without  your  seeing  it? — A.  Well,  it  mighthskYe 
been,  because  I  did  not  count  all  the  tickets. 

Q.  Were  you  a  Democratic  or  a  Republican  commissioner? — A.  For  the  Democratic 
party.     There  were  two  Republicans,  and  I  was  a  Democrat. 

Q.  Did  you  certify  to  the  returns  from  that  ward  as  being  correct  in  every  particu- 
lar f — A.  Yes,  sir;  as  far  as  I  understand  about  election  retnms,  because  I  have  taken 
a  great  deal  of  pains  to  carry  everything  along  straight. 

Piernas  (p.  262): 

Q.  Did  you  assist  in  counting  the  votes  after  the  polls  were  closed? — A.  Yea,  sir; 
holding  the  box  and  seeing  the  name  of  the  voters. 

Q.  State  in  what  manner  the  votes  were  counted. — A.  We  counted  the  vote.  We 
passed  all  over  the  tickets  Jirst  to  see  icliether  there  were  different  names  on  the  tickets,  and 
then  ice  counted  the  votes. 

Q.  Who  assisted  yon  in  scrutinizing  the  tickets? — A.  Mr.  Amadee  Roth;  all  three 
of  us  were  counting  the  votes. 

Q.  Did  you  carefully  scrutinize  every  ticket  and  the  name  on  every  ticket  ? — A.  Yes,  sir. 

Q.  Before  you  counted  them  1 — A.  Yes,  sir. 

Q.  Do  you  remember  the  vote  for  member  of  Congress  at  that  poll? — A.  I  can't  rec- 
ollect what  it  was  exactly,  because  I  did  not  take  no  memorandum. 

Q.  You  don't  remember  the  vote? — A.  Not  in  special  or  particular. 

Q.  XIr.  Piernas,  in  scrutinizing  these  tickets  and  in  examining  them  did  you  exam- 
ine ei-ery  name  on  the  ticket^ — A.  Yes,  sir;  every  name. 

Q.  If  there  had  been  auy  Republican  tickets  with  the  name  of  Mr.  Acklen  on  for 
Congress,  would  you  have  seen  them  ? — A.  I  would,  but  I  did  not  see  none  of  them. 

Q.  If  there  had  been  any  tickets  with  no  name  on  for  member  of  Congress,  would 
you  have  seen  them  ? — ^A.  All  the  Republican  tickets  had  the  name  of  Darrall  on — every 
one  of  them. 

Q.  What  kind  of  tickets  were  there  in  the  poll?  Was  there  more  than  one  kind  of 
Republican  ticket? — A.  There  wa«  another  kind,  but  there  was  only  one  ticket. 


158  DIGEST    OF    ELECTION    CASES. 

Q.  Were  these  Republican  tickets  a  black-back  ticket  T — A.  It  was  a  green  ticket. 
Q.  Then,  was  there  green  tickets?— A.  The  green  ticket  was  green  all  over. 
Q.  Was  that  a  Kepublicau  ticket? — A.  That  was,  so  caMed,  a  Eepublicau  ticket, 
Q.  You  are  positive  Mr.  Darrall's  name  was  ou  all  these  tickets? — A.  Yes,  sir ;  I  am 
positive  of  that. 

Verrett  (p.  270): 

Q.  Did  you  witness  or'  assist  in  counting  the  votes  as  polled  after  the  election  * — A. 
Yes,  sir. 

Q.  Did  you  carefully  examine  the  tickets  ? — A.  Yes,  sir. 

Q.  Did  you  examine  all  the  tickets  ? — A.  Yes,  sir. 

Q.  Were  you  assisted  in  counting  the  votes  by  other  officers  1 — A.  Yes,  sir. 

Q.  How  many?— A.  There  was  Mr,  Dubuclet,  Mr.  Leonce  Soniat,  Mr.  Roth.  Soniat 
■was  Democratic  supervisor.  There  was  another  gentleman  there — I  can't  recollect  hi» 
name ;  he  was  only  an  assistant. 

Q.  Was  there  three  commissioners  and  two  United  States  supervisors  at  the  poll  T — 
A.  Yes,  sir. 

Q.  Did  you  scrutinize  the  tickets  before  they  were  counted  ? — A.  Yes,  sir. 

Q.  Who  looked  over  the  tickets ;  what  officers  looked  over  the  tickets  and  scrutinized 
the  names  ou  them? — A,  The  same  ones  that  I  just  now  mentioned. 

Q.  Did  you  yourself  carefully  observe  every  ticket  and  the  names  on  them  f — A. 
Yes,  sir. 

Q.  Can  you  give  the  number  of  votes  received  by  each  candidate  for  Congress,  or 
near? — A.  No,  sir.     I  never  took  no  statement;  I  did  have  one  at  the  time,  but  I  lost  it. 

Q.  Have  you  heard  of  a  recount  of  the  votes  made  in  that  box  ? — A.  Yes,  sir ;  I  heard 
gome  conversation  about  it  when  I  came  up  in  Plaqnemine  here  some  time  ago. 

Q.  Would  it  be  possible  for  three  commissioners  of  elections,  assisted  by  two  United 
States  supervisors,  acting  under  oath,  to  have  made  any  mistake  in  counting  and  com- 
piling of  the  vote  as  it  was  done  by  yourself? — A.  I  should  think  not,  because  they 
were  very  particular  in  the  count. 

Q.  As  the  votes  were  counted  could  you  have  made  a  mistake  of  one  hundred  or  two 
hundred  votes  for  member  of  Congress  ? — A.  No,  sir. 

Dubuclet  (p.  264) : 

Q.  Did  yon  assist  in  counting  the  votes  as  polled,  after  the  election  ? — A.  Towards 
the  last  I  helped  to  count  the  votes.  I  counted  the  scratched  tickets,  but  the  whole 
tickets  was  counted  by  Mr.  Piernas  and  Mr.  Amad^e  Roth. 

Q.  When  you  opened  the  box,  who  took  the  tickets  out  ? — A.  Mr.  Piernas  and  Mr. 
Roth. 

Q.  As  you  only  counted  the  scratched  tickets,  Mr.  Dubuclet,  could  there  have  been 
»ny  mistakes  made  on  the  other  tickets  and  you  not  know  it  ? — ^A.  I  did  not  think  they 
eonld  make  any  mistake.     I  know  they  did  not  make  any. 

,  Q.  How  do  you  know  they  did  not  make  any  ? — A.  Because  they  was  sworn^     I  sup- 
pose that  they  was  to  do  it,  and  we  were  all  sworn  together  to  do  it  correct. 

Q.  You  were  tallying,  were  you  not — A.  Yes,  sir. 

Poll  2. — Craig  and  Smith,  commissioners  of  election,  and  Davidson, 
supervisor  testified — 
Smith,  Democrat  (p.  54) : 

Q.  Did  you  count  or  assist  in  counting  the  votes  at  that  poll? — A.  I  assisted  in 
counting  them. 

Q.  Describe  the  manner  in  which  the  votes  were  counted. — ^A.  The  box  was  opened 
and  the  tickets  were  taken  out,  and  the  Democratic  tickets  were  strung  on  a  string 
and  the  Republican  tickets  were  strung  on  a  string,  and  the  scratched  tickets  also, 
and  then  they  were  taken  off  and  called  off  of  each  string. 

Q.  Did  you  call  off  the  tickets  ? — A.  No,  sir  ;  I  did  not. 

Q.  Did  you  take  the  tickets  from  the  box  ?  Did  you  scrutinize  them  in  any  man- 
ner t — A.  I  saw  the  gentleman  taking  them  out.  I  was  present  and  saw  him  take 
them  out  and  string  them  ou  the  string,  as  I  told  you. 

Q.  You  were  one  of  the  commissioners  ? — A.  Yes,  sir.  There  was  a  marshal  there 
also  who  superintended  everything.     I  saw  everything. 

Q.  You  say  you  did  not  scrutinize  the  votes? — A.  No,  sir ;  I  never  looked  at  them, 

Q.  Did  you  certify  to  the  returns  as  being  correct  after  the  tally-sheets  were  made 
•mt  ? — A.  Well,  the  account,  sir,  was  right  as  called  off. 

Q.  Did  you  certify  it  as  being  correct  ? — A.  Yes,  sir ;  as  commissioner. 

Davidson  (p.  249),  a  member  of  the  legislature : 

<J.  Did  you  take  any  part  in  the  counting  of  the  votes  ? — A.  I  did  when  the  poll  was 


ACKLEN    VS.    DARRALL.  159 

closed.  The  box  was  opened,  and  Mr.  Robert  O.  Hebert  took  out  the  tickets  and  ex- 
amined them,  and  we  heldjthem  np  and  looked  at  them  ;  and  Mr.  Craig,  he  wae  another 
Republican,  stood  right  qp  the  other  side  of  him;  and  Mr.  J.  D.  Hebert,  he  waa  a 
Democratic  supervisor,  he  stood  on  the  other  side ;  and  Mr,  Hebert  would  take  the 
tickets  out,  and  he  would  say,  "straight  Republican  ticket,"  or  whatever  the  ticket 
might  be,  and  these  three  men  would  look  over.  They  would  count  the  tickets  to  Mr, 
William  A.  Smith — he  was  the  Democratic  supervisor — and  ilr.  Smith  held  a  needle 
with  thread  on  it,  and  I  took  the  tickets  from  Mr.  Smith  and  put  them  on  the  needle, 
and  Mr.  Smith  would  pull  the  string.  I  put  straight  Republican  tickets  on  one  string ; 
that  is,  just  as  they  handed  them  out.-  When  we  would  come  to  a  straight  Democratic 
ticket,  we  would  lay  them  in  a  separate  pile,  and  when  we  would  come  to  a  scratched 
ticket  we  would  lay  them  in  a  separate  pile.  The  straight  Republican  tickets  were 
strung;  then  we  strung  the  Democratic  tickets. 

Q^.  Did  they  string  the  scratched  tickets  ? — A.  They  were  strung  after  they  were 
counted,  on  a  separate  string. 

Q.  In  placing  these  tickets  on  the  needle  did  you  place  the  face  of  the  ticket  up- 
ward f — A.  The  face  upward. 

Q.  I>id  you  scrutinize  and  notice  what  names  were  on  those  tickets  as  you  placed 
them  on  the  needle  ?  —A.  We  did,  because  we  noticed  at  the  time  that  Mr.  Carville  wa& 
spelled  "Clarville,"  and  also  that  Mr.  Wheeler's  name  was  spelled  "  Weeler"  instead 
of  "Wheeler." 

Q.  Who  first  noticed  these  mistakes  on  the  tickets  f — A.  The  one  of  Mr.  Carville'& 
was  by  Mr.  Robert  O.  Hebert,  and  the  one  of  Wheeler's  I  discovered  it  myself  in  dis- 
tributing the  tickets. 

Q.  You  knew,  Mr.  Davidson,  that  these  Republioan  tickets  with  ilr.  Acklen's  name 
on  them  were  in  existence  before  the  election  ? — A.  Oh,  yes. 

Q.  Now,  then,  knowing  that,  and  in  stringing  these  tickets,  did  you  carefully  ob- 
serve whether  any  of  those  tickets  with  his  name  on  them  were  voted  ? — A.  I  did. 

Q.  Were  any  o^hem  voted  as  a  matter  of  fact  at  that  poll  ? — A.  Not  one. 

Q.  Do  you  remember,  Mr.  Davidson,  about  the  vote  for  member  of  Congress  at  that 
poll  ? — A.  Three  hundred  and  odd ;  I  don't  exactly  know. 

Q.  Well,  about  how  many  ? — A.  About  one  hundred  and  fifteen  for  Mr.  Acklen  or  one 
hundred  and  fourteen. 

Q.  Have  you  heard  of  a  recount  that  was  made  of  the  votes  in  that  poll  f — A.  1  have 
heard  of  it. 

Q.  Have  you  heard  or  do  you  know  the  number  of  votes  for  member  of  Congress  in 
that  recount  as  claimed  ? — A.  I  seen,  according  to  what  was  published  in  the  Times, 
there  has  been  a  change  of  about  three  hundred  votes,  something  in  the  neighborhood 
of  three  hundred  votes. 

Q.  Could  a  mistake  of  that  magnitude  have  been  possible  in  the  manner  in  which 
these  tickets  were  counteti  and  scrutinized? — A.  No,  sir;  because  every  one  there 
seemed  anxious  to  see  them  counted.  There  was  more  Democratic  spectators  there 
than  Republicans. 

Q.  How,  then,  do  you  account  for  the  change  in  the  number  of  votes  as  called  for  in 
this  recount  ? — A.  I  cannot  account  for  it  unless  the  boxes  had  been  stuffed  since  they 
have  been  deposited  in  the  clerk's  hands. 

Craig  (p.  272) : 

Q.  Did  you  assist  in  counting  the  votes,  as  polled,  after  the  election  ? — A.  Yes,  sir ; 
I  did. 

Q.  Did  you  examine  the  tickets  carefully  and  scrutinize  all  the  names  on  the 
tickets  f — A.  Yes,  sir :  I  did,  to  the  best  of  my  knowledge. 

Q.  Did  you  handle  the  tickets  yourself  ?— A.  Yes,  sir. 

Q.  All  of  them  ? — A.  Yes,  sir;  I  had  taken  the  tickets  out  with  the  assistance  of  Mr. 
Robert  Hebert ;  and  Mr.  Smith  was  also  on  one  side  tallying,  and  Mr.  Robert  Hebert 
was  on  the  other.     I  scrutinized  the  tickets  from  the  box. 

Q.  Have  you  heard  of  the  recount  of  the  vote  for  Congressman,  made  at  the  request 
of  Mr.  Acklen,  at  your  poll  ? — A.  Yes,  sir ;  I  have  heard  of  it. 

Q.  In  counting  these  tickets,  are  you  sure  Mr.  Acklen's  name  was  not  on  any  of  the 
Republican  tickets? — A.  Yes,  sir;  I  am  sure  of  that;  his  name  was  not  on. 

Q.  Mr.  Craig,  it  is  claimed  in  this  recount  that  instead  of  394  Mr.  Darrall  re- 
ceived only  86  votes  at  your  poll.  Could  such  a  mistake  have  been  possible  ? — A.  It  is 
impossible,  sir,  from  the  very  reason  that  the  tickets  were  counted  too  careful  by  R. 
Hebert,  who  was  standing  just  behind  me.  Him  and  I  looked  over  the  tickets  very 
carefully,  and  there  could  not  have  been  possibly  such  a  mistake. 

Q.  Could  it  have  been  possible  that  instead  of  115  votes  Mr.  Acklen  had  340  votes 
in  your  box  ?  Could  such  a  mistake  have  been  possible  ? — A.  It  is  impossible,  sir,  to 
my  eye-sight. 

Q.  Is  your  eye-sight  good? — A.  Perfectly  good,  sir. 


160  DIGEST    OF    ELECTION    CASES. 

Q.  Conld  it  have  been  possible,  Mr.  Craig,  that  there  was  90  of  those  votes  that  had 
no  name  on  for  Congress? — A.  No,  sir;  it  could  not  have  been  possible. 

Q.  Mr.  Craig,  how  would  you  account,  then,  for  this  difference  between  the  vote  as 
you  counted  it,  which  was  394  for  Darrall  and  115  for  Acklen,  and  the  vote  as  claimed 
in  this  recount  ?  How  would  you  explain  that? — A.  It  would  be  impossible  for  me  to 
say  Mr.  Acklen  was  elected  there  by  the  Kepublican  votes  unless  we  were  all  blind. 

Poll  5. — The  commissioners  of  election  were  Talbott,  Buttrick,  and 
Coleman ;  United  States  supervisors  were  Parker  and  Gourrier.  All 
testified. 

Talbott,  Democrat,  a  lawyer  (p.  46) : 

Q.  Describe  the  manner  in  which  the  votes  at  that  poll  were  counted. — A.  Well,  the 
straight  Republican  tickets  and  the  straight  Democratic  tickets  and  the  scratched 
tickets  were  each  placed  separately  in  piles,  ^nd  the  aggregate  number  of  each  was 
put  down  on  the  tally-sheet. 

Q.  What  was  the  color  of  the  straight  Republican  tickets  issued  to  the  voters  in 
this  parish  ? — A.  I  think  it  was  dark  color,  sir. 

Q.  Did  you  after  the  election  ascertain  or  hear  the  fact  that  some  of  those  Repub- 
lican tickets  bore  the  name  of  J.  H.  Acklen  for  Congress  instead  of  that  of  C.  B.  Dar- 
rall t — A.  1  could  not  say  that  I  did. 

Q.  In  the  way  that  you  counted  those  tickets,  could  the  name  of  J.  H.  Acklen  have 
been  on  some  of  them  without  your  seeing  Itf — A.  WeU,  yes,  sir;  that  might  possibly 
have  occurred. 

Q.  After  you  finished  the  count  what  did  you  do  with  the  tickets? — A.  We  placed 
them  in  the  box  and  sealed  it.     I  do  not  think  that  the  opening  of  the  lock  was  sealed. 

Gourrier,  Democratic  supervisor  (p.  86) : 

Q.  Did  yon  participate  in  the  counting  of  the  votes? — A.  No,  sir;  I  just  stood  there 
and  saw  them  coming  out.  I  did  not  examine  any  tickets  nor  count  them.  I  helped 
to  make  out  the  tally-sheets  in  advance  of  opening  the  box,  and  after  they  were  run 
up  until  they  were  no  use  I  cast  them  aside. 

Buttrick,  Republican  commissioner  (pp.  238  and  240) : 

Q.  Did  you  see  any  Republican  ticket  on  the  day  of  election  that  did  not  have  the 
name  of  the  Republican  nominee  upon  it? — ^A.  No,  sir. 

Q.  Did  you  see  any  previous  to  the  day  of  election? — A.  I  did.  I  saw  a  ticket  the 
day  previous  to  the  election. 

Q.  What  kind  of  a  ticket  was  that  ?  Did  it  resemble  the  regular  Republican  ticket  ? — 
A.  Exactly ;  except  Mr.  Acklen's  name  was  in  place  of  Mr.  Darrall's. 

Q.  Were  any  of  those  tickets  distributed  on  the  day  of  election  to  your  knowledge? — 
A.  Not  to  my  knowledge. 

Q.  Were  any  of  them  voted  at  the  poll  where  you  were  the  commissioner? — A.  No, 
sir;  not  at  the  poll  at  which  I  was  a  commissioner. 

Q.  In  what  manner  were  the  votes  counted  by  the  commissioners  of  election? — ^A. 
They  were  taken  from  the  box  by  Mr.  Coleman,  the  Republican  commissioner,  passed 
then  to  Mr.  Talbert,  who  examined  the  tickets,  saw  that  it  was  not  scratched — exam- 
ined the  face  of  the  ticket — and  where  the  ticket  showed  straight  it  was  laid  in  a  pile 
by  itself,  the  straight  Democratic  and  straight  Republican  tickets.  They  were  then 
counted ;  then  the  scratched  tickets  were  called  olf. 

Q.  Were  these  tickets  carefully  scrutinized  as  they  were  taken  from  the  box? — A. 
By  the  two  commissioners;  not  by  myself,  but  by  Messrs.  Talbot  and  Coleman. 

Q.  Were  they  carefully  scrutinized  by  the  United  States  commissioners? — A.  One 
of  the  commissioners. 

Q.  Which  one? — A.  I  can't  give  you  his  name. 
'    Q.  Mr.  Parker? — A.  Yes,  sir;  Mr.' Parker  scrutinized  the  tickets.     Mr.  Gourrier,  the 
Democratic  supervisor,  and  I  laid  off  and  made  up  the  returns. 

Q.  Do  you  remember  the  number  of  votes  cast  for  member  of  Congress  at  that  poll  ? — 
A.  I  think  it  wan  270. 

Q.  That  was  the  total?— A.  The  total  was  270. 

Q.  Do  you  know  how  many  was  cast  for  each  candidate? — A.  There  was  63  votes 
for  Mr.  Acklen  and  207  for  Mr.  Darrall. 

Q.  Your  official  return  shows  that? — ^A.  Yes,  sir;  it  does  show  that. 

Q.  Are  you  satisfied  that  that  return  was  correct  in  every  particular? — A.  I  am  sat- 
isfied.    I  swore  to  it. 

Q.  Could  there  have  been  any  material  mistake  the  way  the  tickets  were  counted? — 
A.  I  don't  think  there  could  have  been  any  mistake  at  all ;  certainly  not  material 
mistake. 

Q.  Have  you  heard,  or  do  you  know,  the  result  of  the  recount  of  the  votes  in  that 


ACKLEN    VS.    DARRALL.  161 

"box  fur  member  of  Congress? — A.  I  heard  that  it  altered  it  very  material;  that  it 
made  a  material  alteration. 

Q.  Could  it  have  been  possible,  on  the  ballots  as  yon  connted  them,  there  would  be 
only  79  votes  cast  for  Mr.  Darrall  instead  of  207? — A.  No,  sir. 

Q.  Could  it  have  been  possilile  for  Mr.  Acklen's  name  to  have  been  on  one  hundred 
and  fifty-eight  of  those  tickets  instead  of  sixty-three? — A.  Impossible. 

Cross: 

Q.  I  uuderstaud  you  to  have  stated  that  these  tickets  were  taken  out  of  the  box  by 
Coleniau ;  and  they  were  handed  to  Talbert  and  scnitinized  by  him,  and  that  you  and 
Mr.  Guerriere  laid  oft"  and  made  ui>  the  tally-sheets? — A.  Yes,  sir. 

Q.  Under  the  circumstances  could  you  have  seen  every  name  on  every  ticket  that 
■was  scrutinized  by  Mr.  Talbert? — A.  Certainly  I  did  not  see  any  of  them. 

Q.  Had  the  name  of  J.  H.  Acklen  been  on  many  of  those  tickets  scrutinized  by  Mr. 
Talbert,  and  as  you  did  not  see  any  of  them,  can  you  swear  that  such  could  not  have 
been  the  case  withour  your  knowledge? — A.  Yes,  sir;  because  I  have  complete  knowl- 
edge of  Mr.  Talbert  and  Mr.  Coleman.  I  know  that  they  are  houest  men  and  intelli- 
gent. 

Q.  Yon  swear  purely  as  to  their  opinion  of  their  honesty  and  not  as  to  your  knowl- 
edge of  the  tickets? — A.  I  did  not  seethe  tickets  at  the  same  time  that  I  swore  to  the 
returns. 

Q.  Then  your  swearing  to  the  returns  did  not  prevent  the  fact  of  the  tickets  having 
had  my  name  on  for  Congress  instead  of  Dr.  Darrall's  being  counted  in  au  improper 
manner? — A.  Yes,  sir,  it  did.  Tbey  were  two  gentlemen  fiuly  competent  to  do  it,  and 
in  whom  I  had  confidence,  that  scanned  the  tickets.  Oue  was  a  Democrat  and  the 
other  a  Republican ;  pretty  sure  there  was  no  cheating. 

Q.  Yon  are  prepared  to  swear  to  the  returns  as  given  to  you  by  Mr.  Talbert? — A. 
Yes,  sir. 

Q.  Then  you  are  prepared  to  swear  to  the  returns  upon  Mr.  Talbert's  count  and  not 
upon  your  count  ? — A.  Yes,  sir ;  I  am  prepared  to  swear  to  the  returns  on  Mr.  Talbert'a 
count  and  Mr.  Coleman's. 

Q.  Had  Mr.  Talbert  afterward  sworn  that  he  did  not  scrutinize  the  tickets  for  the 
Congressional  nominee,  and  that  that  mistake  could  have  occurred  because  he  tabu- 
lated the  tickets  in  bulk,  would  you  have  been  then  willing  to  have  sworn  to  the  re- 
turns without  examining  the  tickets  yourself? — A.  After  seeing  Mr.  Talbert's  scrutiny 
I  should  very  much  doubt  whether  he  would  swear  to  anything  of  the  kind,  becausoJ 
know  that  he  examined  the  tickets  very  carefully  and  the  face  of  the  tickets. 

Coleman,  Republican  commissioner  (p.  255:) 

Q.  Did  yon  assist  in  counting  the  votes  as  polled  after  the  election  ? — ^A.  Yes,  sir. 

Q.  Did  you  carefully  examine  and  scrutinize  the  ticket  and  every  name  on  the  tick- 
et?— A.  Yes,  sir;  I  did. 

Q.  Who  assisted  you  in  making  this  scrutiny  of  the  tickets? — A.  Mr.  Parker  first; 
after  Mr.  Parker,then  I  and  Mr.  Talbert. 

Q.  Were  these  gentlemen  also  officers  of  the  election? — A.  Yes,  sit;  they  were. 

Q.  Then  the  three  officers  of  the  election  scrutinized  the  tickets? — A.  Yes,  sir. 

Q.  Would  it  not  be  utterly  impossible  for  three  commissioners  of  election,  assisted 
by  two  United  States  supervisors  of  election,  all  acting  under  oath,  to  have  made  any 
material  mistake  in  counting  and  comjiiling  the  vote  ? — A.  I  don't  think  that  many 
men  could  make  a  mistake  looking  over  oue  ticket ;  there  were  three  men  examined 
the  ticket. 

Q.  At  your  poU  were  there  three  commissioners  and  two  United  States  supervisors? 
— A.  Yes,  sir;  there  were. 
-Q.  Including  yourself ? — A.  Yes,  sir;  including  myself. 

Q.  Mr.  Coleman,  have  you  heard  of  the  recount  of  the  vote  for  member  of  Congress, 
made  at  the  request  of  Mr.  Aeklen  at  the  box  where  you  were  present? — A.  Yes,  sir; 
I  have. 

Q.  Can  you  give  the  vote  for  the  member  of  Congress  at  your  poll,  as  you  counted 
them,  assisted  by  the  other  commissioners,  as  near  as  you  recollect  ? — A.  To  my 
remembrance,  as  near  as  I  can  come  at  it,  it  is  about  two  hundred  and  seven ;  that  is 
as  near  as  my  remembrance  is. 

Q.  What  was  the  vote  of  the  other? — A.  Sixty-three,  if  I  am  not  mistaken. 

Q.  Do  you  know  or  have  you  heard  how  many  votes  were  given  to  each  member  of 
Congress  on  the  recount  of  your  box? — A.  By  the  recount?  No,  sir;  I  cannot  say 
positively. 

Q.  It  is  claimed  by  the  receiver  of  the  votes  at  your  poll  that  there  was  in  the  box 
thirty -two  tickets  which  did  not  have  any  name  on  them  for  Congress.  Would  or 
would  not  the  commissioners  have  discovered  that  fact  in  counting  these  blank  votes? 
— A.  They  would,  Mr.  Darrall. 

H.  Mis.  58 11 


162  DIGEST  OF  ELECTION  CASES. 

Q.  It  is  also  claimed  by  the  recount  at  this  poll  that  Mr.  Darrall  only  received  79 
TOtes  instead  of  207.  Would  such  a  mistake  have  been  possible  f — A.  I  don't  think 
it  were  possible. 

Q.  Did  you  seal  the  box  before  bringing  it  to  the  court-honse  T — A.  Yes,  sir. 

Q.  In  what  manner  T — A.  I  sealed  it  over  the  hole  where  the  ballots  were  shored 
in.  The  key-hole — I  did  not  seal  it.  I  sealed  the  ballot-hole,  and  delivered  the  box 
to  the  constable.  I  kept  the  key  until  the  box  was  delivered  to  the  clerk  of  thfr 
court ;  then  I  delivered  him  the  key. 

Q.  Were  you  assisted  in  sealing  the  box  by  the  other  commissioners  f — A.  Yes,  sir; 
I  was. 

Q.  Did  you  place  any  seal  or  any  paper  over  the  key-hole  T — ^A.  No,  sir ;  none  at  aU. 

Q.  Mr.  Coleman,  how  do  you  account  for  the  diflerence  between  the  votes  as 
counted  by  yourself  and  the  commissioners  at  the  poll  and  the  votes  counted  in  that 
box  on  the  recount  f — A.  I  don't  exactly  understand  you.  The  only  way  that  I  see 
it  could  have  occurred,  there  was  more  tickets  counted  than  was  put  in  there.  Be- 
cause I  am  confident  within  myself  that  the  other  three  officers  were  there  with  me^ 
and  I  don't  think  the  mistake  could  have  been  made.  The  onliest  way  I  see  how  it 
could  be,  they  were  counted  and  put  in  afterward. 

Q.  From  the  manner  in  which  those  boxes  were  sealed  and  delivered  to  the  clerk'ft 
oflBce,  could  the  box  have  been  unlocked  and  the  tickets  changed  at  any  time  ? — 
A.  Of  course. 

Cross: 

Q.  Now,  Mr.  Coleman,  will  yon  please  describe  exactly  how  this  count  was  made, 
as  you  did  not  previously  describe  it  carefully — the  count  of  the  tickets  ? — A.  The 
way  them  tickets  was  counted,  I  unlocked  the  box  ;  then  I  taken — myself  and  Parker 
— taken  the  tickets  out,  and  laying  them  all  out  straight  on  the  baiTel,  the  straight 
Republican  tickets  all  to  themselves,  and  the  straight  Democratic  tickets  aUto  them- 
selves, and  the  scratched  tickets  all  to  themselves,  in  separate  piles;  then  we  taken 
the  straight  Republican  tickets,  wrote  each  name  down  on  the  ticket  carefully  as  we 
could,  and  each  name  was  given  his  complement  of  votes,  his  number  of  votes ;  the 
names  was  taken  down  as  they  were  on  the  ticket,  and  were  written  down  ;  and  the 
Democratic  tickets  the  same  way ;  and  the  scratched  tickets  was  counted,  and  those 
that  were  not  scratc  hed  ;  the  name  was  taken  down  straight  on  the  ticket,  the  names 
written,  and  the  complement  of  votes  written  down. 

Q.  Did  you  handle  all  the  tickets  yourself? — A.  Yes,  sir. 

Parker,  Kepublican  supervisor  (pp.  258  and  259  :) 

Q.  Did  you  assist  in  counting  the  votes  as  polled,  after  the  election  f — A.  Yes,  sir. 

Q.  Did  you  examine  and  scrutinize  each  ticket,  and  the  name  on  each  ticket  care- 
fully t — A.  Yes,  sir ;  I  did,  carefully. 

Q.  Who  assisted  you  in  making  this  scrutiny  of  the  tickets  ? — A.  There  was  Mr. 
Coleman,  Mr.  Tolbert,  and  myself. 

Q.  Would  it  not  be  utterly  impossible  for  three  commissioners  of  election  and  two 
United  States  supervisors  of  election,  all  acting  under  oath,  to  have  made  any  mate- 
rial mistake  in  counting  and  compiling  the  vote  ? — A.  Yes,  sir ;  it  would. 

Q.  Were  there  three  commissioners  and  two  United  States  supervisors  at  your  poll, 
including  yourself? — A.  Yes,  sir. 

Q.  Have  you  heard  of  the  recount  of  the  votes  of  that  box  (for  Congressman)  made 
at  the  request  of  Mr.  Acklen  ?— A.  Yes,  sir;  I  have. 

Q.  Did  this  recount,  as  you  understand,  make  any  material  change  in  the  vote  for 
member  of  Congress  ? — A.  Yes,  sir;  it  made  a  great  deal  of  change. 

Q.  Give  the  number  of  votes,  as  near  as  you  recollect,  of  each  candidate  for  Con- 
gress received  at  your  poll  ?— A.  Darrall  207,  and  Acklen  63. 

Q.  Do  you  know  how  many  votes  each  candidate  was  accredited  with  on  this  re- 
count ;  have  you  heard  or  do  you  know  ? — A.  No,  sir ;  I  have  not  heard. 

Q.  It  is  claimed  by  this  recount  that  the  vote  for  Congressman  at  poll  5 — that  there 
were  in  the  box  thirty-two  blank  tickets  for  member  of  Congress.  Would  or  not  the 
commissioners  have  discovered  that  fact  in  counting  the  votes,  if  such  had  been  the 
fact  ? — A.  Yes,  sir ;  they  would. 

Q.  It  is  also  claimed  on  the  recount  at  poll  5  that  Mr.  Darrall  only  received  79  votes 
instead  of  207.  Would  such  a  mistake  have  been  possible  ?— A.  No,  sir ;  it  would 
not. 

Q.  It  is  also  claimed  that  Mr.  Acklen  received  158  votes  instead  of  63.  As  the 
votes  were  counted  and  compiled,  would  such  a  mistake  have  been  possible  ? — A.  No, 
sir. 

Q.  Mr.  Parker,  how  do  you  account  for  the  difference  between  the  votes  for  mem- 
ber of  Congress  as  you  and  the  other  officers  counted  it  on  the  day  of  the  election, 
and  the  vote  according  to  this  recount? — A.  It  seems  to  nie  that  there  is  soiin'thiug 
wrong  about  the  ballots,  the  votes. 


ACKLEN    VS.    DARRALL.  163 

Q.  You  mean  there  was  something  wrong  wlien  you  counted  them  T — A.  No,  sir ; 
there  was  nothing  wrong  about  them  when  I  counted  them  ;  they  was  wrong  when 
they  were  recounted. 

Q.  As  you  and  the  other  commissioners  counted  them,  could  there  have  been  any- 
thing wrong  without  your  seeing  it  f — A.  No,  sir ;  there  couhl  not. 

Poll  G. — Wilson  aud  JoIiqsou,  Eepublican  coinmissiouers,  and  Felix 
Roth,  Democratic  commissioner,  testified. 
Felix  Koth,  Democrat  (p.  55) : 

Q.  Did  you  count  or  assist  in  counting  the  vot«8  there  T — A.  I  did,  sir'. 

Q.  Describe  the  way  in  which  the  votes  were  counted. — A.  The  tickets  were  piled 
iu  three  different  lots. 

Q.  What  was  the  color  of  the  straight  Republican  ticket  issued  in  this  parish  T — A. 
The  Republican  ticket  had  a  black  back  similar  to  the  one  you  are  holding  in  yonr 
band. 

Q.  In  the  way  iu  which  those  votes  were  counted  could  my  name  have  been  on  some 
of  them  without  your  seeing  it  ? — A.  It  might  have  been,  sir  ;  although  I  took  a  good 
deal  of  precaution  to  look  over  it. 

Q.  You  re])resented  the  Demecratic  party  at  that  poll? — A.  Yes,  sir. 

Q.  You  certified  the  returns  from  that  poll  as  beiug  correct? — A.  Yes,  sir;  and  it 
was  coiTect  as  far  as  I  could  do  it,  sir.  The  only  thing  I  might  have  slipped  wasth« 
name  iu  this  case.  I  had  very  little  comfort  and  a  great  deal  of  difficulty.  It  was 
one  of  the  coldest  nights  that  I  ever  saw  in  my  life  and  I  had  no  fire.  That  was  the 
only  thing  that  might  have  happened ;  errors  might  have  happened.  I  do  not  pretend 
to  be  correct  in  eveij-  case;  I  tried  to  do  justice  to  both  parties. 

Q.  Did  you  take  the  tickets  from  the  box  ? — A.  Yes,  sir. 

Q.  Were  they  scrutinized  by  anybody  else  but  you  ? — A.  Yes,  sir ;  two  others.  I 
appointed  two  others  to  keep  the  tally. 

Thomas  Jolmson,  Republican  (p.  57) : 

Q.  Did  yon  count  or  help  count  the  votes  at  that  poll  T — A.  Yes,  sir. 

Q.  How  did  you  take  them  out  of  the  box  ? — A.  I  took  them  out  of  the  box  and  gave 
them  to  another  person  to  call  them  out.  Mr.  Roth,  the  other  commissioner,  was  there. 
We  then  put  them  down  in  the  tally-sheets. 

Q.  Did  you  arrange  them  all  in  piles? — A.  Yes,  sir ;  the  Republican  tickets  together. 
We  had  two  Republican  tickets,  the  blue  ticket  and  the  black  ticket,  and  then  we 
had  the  straight  Democratic  ticket.     We  counted  each  together. 

Q.  Did  you  after  the  election  hear  that  J.  H.  Acklen's  name  was  on  some  of  the 
Republican  tickets? — A.  No,  sir;  I  did  not. 

yi.  What  was  the  color  of  the  Republican  ticket? — A.  There  wasone  black  one  and 
one  blue  one,  and  the  Democratic  ticket  was  a  plain  white  one. 

Q.  After  you  finished  the  count  what  did  you  do  with  the  tickets  t — A.  Put  them 
iu  the  box. 

Q.  Did  you  deliver  the  box  to  the  clerk  of  the  court  yourself? — ^A.  No,  sir;  I  did 
not^  I  sent  it  by  the  supervisor  of  registration. 

Q.  What  was  his  name? — A.  Mr.  A.  J.  Barnes. 

Cross-examiued  by  Mr.  Jolley  : 

Q.  Were  you  a  Republican  commissioner? — A.  Yes,  sir;  I  was  nominated  by  the 
Republicans  here  for  commissioner. 

Q.  In  looking  over  those  tickets  did  you  scrutinize  them  very  carefully? — A.  I  took 
all  my  attention  on  those  tickets. 

Q.  You  certified  to  the  returns  as  being  correct? — A,  Yes,  sir;  as  correct. 

Ed.  Wilson,  Republican  (p.  266) : 

Q.  Did  you  assist  iu  counting  the  votes  as  polled,  after  the  election? — A.  Yes,  sir. 

Q.  Did  you  scrutinize  and  examine  the  tickets  carefully? — A.  Yes,  sir;  I  examined 
all  the  tickets. 

Q.  Did  you  examine  all  the  names  on  the  tickets  as  yoa  took  them  from  the  box? — 
A.  Yes,  sir ;  one  at  a  time. 

(^.  Did  you  take  all  the  tickets  from  the  box  yourself  ? — A.  Yes,  sir;  I  was  the  only 
one. 

Q.  As  you  took  each  ticket  out  separately,  did  you  examine  it  in  the  manner  you 
have  spoken  ? — A.  Yes,  sir. 

Q.  Was  the  count  of  the  votes  and  the  returns  as  certified  to  by  yourself  for  mem- 
ber of  Congress  correct  in  every  particular  ? — A.  Yes,  sir. 

Q.  Would  it  not  have  been  impossible  for  three  commissioners  of  election,  assisted 
by  two  United  States  supervnsors,  all  acting  under  oath,  to  have  made  any  material 
mistake  iu  counting  aud  compiling  the  votes? — A.  Yes,  sir. 


« 


164  DIGEST  OF  ELECTION  CASES. 

Q.  Was  there  three  commissioners  aud  two  United  States  supervisora  at  your 
poll  T — A.  Yes,  ."^ir. 

Q.  How  many  of  those  officers  -were  Democrats? — A.  Three. 

Q.  Have  you'heard  of  the  recount  of  the  vdtes  at  yonr  poll  for  member  of  Congress, 
made  at  the  request  of  Mr.  Acklenf — A.  Yes,  sir;  I  believe  I  heard  about  that. 

Q.  Can  you  give  the  number  of  votes  polled  for  member  of  Congress  at  that,  your 
poll,  actually  cast  ? — A.  No,  sir. 

Q.  Or  about  the  number  ?— A.  They  was  all  counted,  and  it  was  down  on  the  tally. 

Q*  Did  not  Mr.  Darrall  receive  a  large  majority  of  the  votes  cast  ?— A.  Y'es,  sir. 

Q.  It  i.s  claimed  by  this  recount  of  the  votes  that  Mr.  Acklen  received  a  large  ma- 
jority. Could  that  have  been  possible,  to  have  made  a  mistake  of  that  kind:  could 
it  have  been  possible  for  you  to  make  a  mistake  of  that  kind  ? — A.  No,  sir.  1  could 
not  have  made  no  mistake  in  counting  the  votes. 

Q.  You  have  said  that  you  carefully  scrutinized  every  ticket? — A.  Every  ticket 
that  came  out  of  the  box. 

Q.  Was  Mr.  Acklen's  name  on  any  of  the  Eepublican  tickets  f — A.  No,  sir. 

Q.  Not  one  ? — A.  No,  sir. 

Q.  Neither  on  the  black  nor  the  blue  tickets? — A.  No,  sir. 

Q.  In  counting  these  votes,  could  it  have  been  possible  that  the  name  of  the  candi- 
date for  Congress  on  one  hundred  and  thirty-five  tickets  would  be  blank  and  you  not 
see  it  ? — A.  No,  sir. 

.Q.  And  you  can  positively  swear  that  you  examined  the  names  on  every  ticket  ? — 
A.  Yes,  sir.     I  took  them  out  one  by  one. 

Poll  7. — Le  Blauc,  commissioner,  a  Republican  (called  by  contest- 
ant), and  Carville,  Kepublican  supervisor,  testified: 
Adonis  Le  Blanc  (p.  58) : 

Q.  Did  you  count  or  help  count  the  votes  there  ? — A.  I  kept  a  tally. 

Q.  State  how  the  votes  were  taken  out  of  the  box  and  assorted  and  counted.— 
A.  So  far  as  I  paid  atteution  they  were  taken  by  the  handful  and  spread  on  the  table, 
and  the  Republican  votes  were  put  on  one  side  and  the  Democratic  votes  on  another. 
If  they  got  in  with  the  Republican  tickets  they  kept  them  until  they  got  up  to  ten, 
I  believe,  and  they  tallied  them.  So  far  as  taking  them  out  of  the  box  is  concerned, 
they  were  taken  out  by  the  handful. 

Q.  You  say  you  cannot  identify  the  box? — A.  No, sir:  I  cannot. 

Q.  Were  you  a  commissioner  for  the  Republicans  or  for  the  Democrats  ? — A.  For  the 
Republicans. 

Q.  Did  you  handle  any  of  the  tickets  yourself? — A.  No,  sir  ;  none  of  them. 

Q.  You  certified  to  the  returns  from  that  poll? — A.  Yes,  sir,  so  far  as  the  counting 
•WHS  concerned ;  that  is,  from  what  Mr.  Allian  and  Mr.  Carville  stated. 

J.  C.  Carville  (pp.  197-200),  member  of  the  legislature : 

Q.  Did  you  witness  and  scrutinize  the  counting  of  all  the  votes  there? — A.  Yes,  sir. 

Q.  Did  you  haudle  any  of  the  tickets? — A.  No,  sir;  I  did  not  handle  any  of  the 
tickets  at  the  count.  I  only  examined  them  by  looking  at  the  commissioners  as  they 
counted  them. 

Q.  Looking  over  the  shoulders  of  the  commissioners  ? — A.  Yes,  sir.  I  did  not  handle 
any  of  the  tickets. 

Q.  Did  yon  see  the  returns  made  by  the  commissioners  signed? — A.  I  did. 

Q.  Were  the  returns  certified  to  by  all  the  commissioners  as  correct  ? — A.  They  were 
certified  to  by  the  commissioners  as  correct. 

Q.  Are  you  satisfied  that  the  count  of  the  votes  as  made  by  the  commis-sioners  of 
election  and  certified  to  by  them  was  correct  in  every  particular  ? — A.  As  far  as  I 
know  anything  about  it,  it  was  correct.     I  don't  know  anything  to  the  contrary. 

Q.  Do  you  remember  the  number  of  votes  Mr.  Darrall  received  at  that  poll  ? — A.  He 
received  187,  certified  by  commissioners. 

Q.  Do  you  remember  the  number  of  votes  cast  for  Mr.  Acklen  at  that  poll,  his  oppo- 
Bent  ? — A.  It  was  58  or  59,  I  think.  I  don't  know  which.  Somewhere  about  that 
neighborhood.    Am  not  positive ;  but  it  ranges  in  that  neighborhood  somewhere. 

Q.  Do  you  remember  how  many  blank  votes  there  were  found  in  that  box  ?— A.  Not 
one. 

Q.  That  is,  for  member  of  Congress  ? — A.  Yes,  sir. 

Q.  You  are  positive  of  that  ? — A.  Yes,  sir.  I  never  heard  of  any  blank  votes  being 
found  there.  I  never  heard  of  any  such  thing  on  all  the  day  of  election  in  counting 
the  ballots. 

Q.  Have  you  heard  that  that  box.  No.  7,  has  been  reopened  and  recoanted,  and  the 
result  of  that  recount  f — A.  I  have. 


ACKLEN    VS.    BARRALL.  165 

Q.  As  the  vote  was  recounted,  it  stands  96  for  Darrall,  79  for  Acklen,  and  73  blanks. 
Being  present  at  that  poll,  having  seen  the  votes  counted,  the  returns  made,  do  you 
believe  it  possible  that  such  a  mistake  could  have  been  made  by  the  commissioners  of 
election  at  that  poll  ? — A.  I  don't  know  what  about  the  commissioners ;  but  I  don't 
think  that  would  have  escaped  my  notice.     As  for  the  commissioners,  I  can't  answer, 

Q.  Was  it  not  generally  conceded  by  both  Democrats  and  Republicans  that  the  vote 
of  Darrall  and  that  of  Acklen  as  certified  toby  the  register  of  voters  was  correct? — A. 
All,  with  one  exception.  The  Democrats  did  not  understand  how  Mr.  Acklen  got  more 
votes  in  the  parish  than  the  balance  did,  but  otherwise  it  was  satisfactory. 

Q.  Do  you  know  how  much  more  he  got,  and  at  what  poll  ? — A.  Well,  I  don't  know 
how  many  more  he  got.     Poll  No.  9,  called  Grosse  Tete  poll 

Q.  Was  that  the  only  poll  in  which  Mr.  Acklen  ran  ahead  of  his  ticket? — A.  Icoold 
not  answer  that ;  I  am  not  well  enough  posted. 

Q.  Mr.  Carville,  are  you  acquainted  with  the  commissioners  of  election  at  poll?? — 
A.  Yes,  sir. 

Q.  What  is  their  standing  in  the  community  ? — A.  They  stand  very  well. 

Q.  Honest,  honorable  men? — A.  Yes,  sir;  honest,  honorable  men. 

Q.  What  is  the  educational  qualification  of  those  men  ? — A.  They  are  all  educated. 
Julian  Allen  is  a  white  niau,  a  Democrat,  lawyer;  Adonis  Le  Blanc  is  a  white  man 
also ;  he  has  been  a  teacher  in  the  parish  for  several  years.  The  other  man  is  a  colored 
man ;  reads  and  writes  very  well. 

Q.  What  is  the  reputation  of  the  Democratic  commissioner  as  to  prudence  ? — A.  He 
has  a  very  high  reputation  of  being  a  straightforward,  honest  man  ;  stands  very  well 
in  the  community  he  lives  in,  and  respected  by  everybody. 

Q.  Is  he  jmident,  careful,  in  all  his  transactions  ? — A.  Very  much  so ;  very  careful 
man. 

Q.  Do  you  believe  it  possible  that  he,  as  a  sworn  oflScer  of  the  lavr,  could  have  been 
so  negligent  as  to  have  committed  such  an  error  ? — A.  What  do  you  want ;  simply  my 
opini(m  about  it  ? 

Q.  Yes. — A.  Well,  I  don't  think  he  would  acknowledge  that  himself.  I  can't  answer 
that  in  regard  to  myself,  but,  as  to  the  commissioner,  I  don't  think  he  would. 

The  foregoing  testimony  is  in  reference  to  the  five  polls  which  alone 
are  in  contest,  and  shows  the  oflBcial  count  was  carefully  made. 

LAW   OF  LOUISIANA  FOR  PRESERVATION  OF  BALLOTS. 

Sec.  13,  Be  it  farther  enacted,  Sfc,  That  it  shall  be  the  duty  of  the  commissioners  of 
election  at  each  poll  or  voting  place  to  keep  a  list  of  the  names  of  the  persons  voting 
at  such  poll  or  voting  place,  which  list  shall  be  numbered  from  one  to  the  end ;  and 
said  lists  of  voters,  with  their  names  and  numbers  as  aforesaid,  shall  be  signed  and 
sworn  to  as  correct  by  the  commissioners  immediately  on  closing  of  the  polls,  and 
before  leaving  the  place,  and  before  opening  the  box.  If  no  judge  or  justice  of  the 
peace,  or  other  person  authorized  to  administer  such  oath,  be  present  to  do  so,  it  may 
be  administered  by  any  voter.  The  votes  shall  be  counted  by  the  commissioners  at 
e^^ch  voting  place  immediately  after  closing  the  election  and  without  moving  the  boxes- 
from  the  place  where  the  votes  were  received,  and  the  counting  must  be  done  in  the 
presence  of  any  by-stander  or  citizen  who  may  be  present.  Tally-lists  shall  be  kept  of 
the  count,  and  after  the  count  the  ballots  counted  shall  be  put  back  into  the  box  and 
preserved  until  after  the  next  term  of  the  criminal  or  district  court,  as  the  case  may 
be;  and  in  the  parishes,  except  Orleans,  the  commissioners  of  election,  or  any  one  of 
them  selected  for  that  purpose,  shall  carry  the  box  and  deliver  it  to  the  clerk  of  the 
district  court,  who  shall  ])reserve  the  same  as  above  required;  and  in  the  parish  of 
Orleans  the  box  shall  be  delivered  to  th«  clerk  of  the  first  district  court  for  the  parish 
of  Orleans,  and  be  kept  by  him  as  above  directed.     (Act  98,  1872,  p.  174.) 

The  annexed  certificate  from  the  clerk  of  the  district  court  shows  that  the  first  terra 
of  court  was  held  January  I,  and  the  said  recount  was  not  had  till  March,  the  ballots 
only  being  legal  evidence  when  counted  before  the  term  of  court,  as  after  that  the 
clerk  is  not  responsible  for  safe-keeping  of  either  boxes  or  ballots. 

Certijicute  of  cleric. — (Page  178). 

State  of  Louisiana, 

Parish  of  Iberville: 

Clerk's  Office,  Fifth  Judicial  District  Court. 

I,  Charles  H.  Gordon,  clerk  of  the  fifth  judicial  district  court  of  Louisiana,  in  and 
for  the  parish  of  Iberville,  do  hereby  certify  that  the  first  term  of  the  said  district  court 


166  DIGEST    OF    ELECTION    CASES. 

for  the  present  year  was  held  iu  Iberville  Parish  on  Tuesday,  the  2<1  day  of  January, 
A.  D.  1877,  as  the  first  Monday  was  the  Ist  and  a  dies  non,  his  honor  James  L.  Cole 
presiding. 

Witness  my  hand,  officially,  and  the  impress  of  the  seal  of  said  court,  at  the  parish 
of  Iberville,  this  8th  day  of  May,  A.  D.  1877. 

[SEAL.]  C.  H.  GOKDON,  Clerk. 

The  boxes  were  not  all  delivered  to  tbe  clerk  of  court,  but  some  to  the 
supervisor  of  registration  or  his  clerk,  unauthorized  parties.  How  long 
they  were  in  those  hands  is  not  shown. 

Crowell,  then  clerk  of  court,  says  (p.  59) : 

Q.  After  the  election,  did  you  receive  all  the  boxes  according  to  law  ?  Were  they 
delivered  by  the  commissioners? — A.  I  received  the  chief  part  of  them  from  the  com- 
missioners. I  received  two  or  three  from  the  clerk  of  the  registrar  here,  I  believe. 
By  mistake  they  delivered  them  at  his  office  instead  of  here. 

The  evidence  shows  that  the  box  from  poll  7  was  thus  delivered  to 
the  register  or  his  clerk  instead  of  the  clerk  of  court  (p.  59),  and  box 
from  poll  6  by  Barnes,  an  unauthorized  party  (pp.  55  and  94). 

This  law  has  not  been  complied  with,  as  appears  from  the  testimony 
of  the  ofl&cers  of  election  at  the  different  polls,  both  Democrat  and  Re- 
publican, and  from  the  evidence  of  the  custodian  of  the  boxes,  the  clerk 
of  court. 

HOW  BOXES  WERE  SEALED  AND  HOW  THEY  WEB,E  FOUND  ON  RECOUNT. 

Poll  1. — Box  was  properly  sealed  with  sealing-wax.    Seals  were 
found  broken. 
Amadee  Both,  Democratic  commissioner  of  that  poll  (p.  56) : 

Q.  Would  you  recognize  the  box  T — A.  No,  sir ;  I  do  not  believe  I  would. 

(The  box  referred  to  by  the  witness  was  here  produced  by  the  clerk  of  the  court  for 
identification. ) 

Q.  Is  that  your  signature  on  that  box  ? — ^A.  Yes,  sir. 

Q.  Is  that  the  box  f — A.  I  could  not  tell  you  whether  it  is  the  box,  but  that  is  my 
signature. 

Cross-examined  by  Mr.  Jolley  : 

Q.  Look  at  that  box  at  the  key-hole.  Did  yon  cover  that  up  and  sign  it  as  you  did 
on  the  top  ? — A.  Yes,  sir;  I  put  *'E.  Roth" — that  is  my  name — on  top. 

Q.  The  key-hole  looks  like  the  paper  had  been  torn  from  it  f — A.  I  could  not  tell 
that.     Of  course  it  has  not  that  same  look  as  when  I  signed  it. 

Poll  6. — Box  was  properly  sealed  with  sealing-wax.  Seals  were 
found  broken. 

Felix  Roth,  Democratic  commissioner  at  that  poll  (p.  55) : 

(The  box  referred  to  by  the  witness  was  here  produced  by  the  clerk  of  the  court  for 
identification.) 

Q.  Is  that  the  box  f — A.  Yes,  sir ;  that  is  my  name  there. 

Q.  Is  it  just  as  you  delivered  it  to  the  justice? — A.  Yes,  sir;  that  is  it,  but  this 
has  been  resealed.    Of  course  it  had  to  be  opened  once  to  count. 

Q  What  were  the  names  of  the  Republican  commissioners  with  you  at  that  poll  ? — 
A.  Johnson  was  one — I  do  not  know  his  first  name — and  Wilson  was  the  other.  I  do 
not  know  his  first  name,  either.  His  name  is  on  the  box.  They  were  both  Repub- 
licans. 

Cross-examined  by  Mr.  Jolley  : 

Q.  You  say  that  box  has  been  resealed  over  the  key-hole  ? — A.  Yes,  sir ;  I  suppose 
it  was,  as  far  as  my  recollection  serves  me. 

Q.  Did  you  write  your  signature  over  the  paper  that  was  over  the  key-hole  ? — ^A. 
Yes,  sir,  I  did ;  at  least,  as  far  as  my  recollection  serves  me,  I  must  have  done  it. 

Gordon,  the  clerk,  and  his  deputy,  admit  seals  broken,  but  explains 
on  account  of  dampness  of  office. 
Gordon,  the  clerk  (p.  61): 


ACKLEN    VS.    DARRALL.  167 

Q.  Now,  one  of  the  witnesses  noticed  that  over  the  key-hole  of  one  box  the  paper 
liad  been  fractured.  These  boxes  have  been  in  your  possession.  How  do  you  ac- 
count for  that  ? — A.  Well,  from  the  simple  fact  that  anybody  can  come  to  this  office 
and  examine  these  boxes  and  sit  in  the  office,  and  all  my  predecessors  will  tell  you 
that  t'le  office  is  very  damp,  and  you  can  catch  the  pneumonia  or  anything  else  here. 
For  ttiis  reason  I  say  that  the  dampness  has  softened  the  wax  in  such  a  way  that  the 
papers  liave  become  loose ;  and  I  think  it  very  likely,  too,  that  in  removing  the 
bojes  from  this  place  to  that  place  I  may  have  dented  them  in  some  way.  Every 
<iay  I  sweep  up  this  office,  and  you  will  find  that  considerable  dust  accumulates, 
aad  very  likely  in  dusting  the  box  I  might  have  knocked  a  hole  in  it,  or  at  least  in 
tiie  i)aper. 

(The  witness  here  produced  a  worn-out  and  dilapidated  duster  and  exhibited  it  to 
the  judge  and  by-standers. ) 

Landry,  deputy  clerk  (p.  62) : 

Q.  Those  boxes  that  have  the  papers  broken  on  them  were  sealed  with  wax! — A. 
Well,  I  could  not  swear  to  that  fact.  I  could  only  swear  to  them  as  I  see  them  now, 
that  they  are  sealed  with  wax.  I  never  examined  the  boxes  to  see  what  they  were 
sealed  with  when  they  first  came  in. 

Q.  Is  not  this  court-house  very  damp  ? — A.  Yes,  sir ;  I  say  that  the  dampness  of  the 
office  would  affect  the  seals  of  the  boxes  if  they  are  seaied  with  mucilage.  Now,  I  do 
not  know  whether  it  could  affect  the  sealing-wax,  but  if  the  dampness  does  affect  the 
e«aling-wax  they  would  be  affected  in  this  office,  because  this  office  is  very  damp. 

Poll  2. — Was  only  sealed  with  paper  and  mucilage  over  the  key- 
hoe. 

Jon.  J.  S.  Davidson,  United  States  supervisor  (p.  249): 

Q  Did  you  remain  and  witness  the  count  of  all  the  votes  and  tb©  sealing  of  the 
t»oxM? — A.  Yes,  sir. 

Q.What  was  done  with  the  box  after  they  were  all  counted! — A.  Close  it  np  in  the 
box.  The  boxes  were  sealed. 

Q.  n  what  manner  were  the  boxes  sealed  ? — A.  Sealed  over  the  key -hole. 

Q.  Vith  sealing-wax  or  what  ? — A.  With  mucilage. 

Q.  7as  any  sealing-wax  used? — A.  With  mucilage  and  over  the  key-hole — where 
the  vr,e6  were  put  in  also — and  the  commissioners  wrote  their  names  over  the  hole 
whorehe  votes  were  deposited,  on  the  paper  that  was  put  over  the  hole. 

Q.  Id  they  write  their  names  over  the  paper  across  the  key-hole  T — A.  No,  sir ;  they 
■did  no 

Q.  ^heu  the  boxes  were  sealed  in  this  way  could  the  paper  have  been  removed  and 
the  ticets  taken  out  and  replaced  with  paper  of  the  same  kind  placed  over  them  T — 
A.  Thfc  could  have  been  done  very  handy,  because  there  was  no  name  over  the  key- 
hole, al  another  paper  of  the  same  kind  could  have  been  put  over  without  any 
trouble 

Pol  7. — Was  only  sealed  with  paper  and  mucilage ;  no  sealing-wax 
used. 

Hon  J.  C.  Carville,  United  States  supervisor  (p.  197): 

Q.  Doou  remember  the  manner  in  which  the  commissioners  sealed  the  box  after 
the  votewere  counted  and  replaced  in  the  box  f — A.  Yes,  sir. 

Q.  No  will  you  please  describe? — A.  The  ballots  were  counted.  After  they  were 
counted  ey  were  put  back  in  the  box.  The  commissioners  were  satisfied  and  the  two 
United  Stes  supervisors  were  also  satisfied. 

Q.  ThUs,  the  Democratic  and  Republican?— A.  Yes,  sir ;  they  were  both  satisfied. 
As  there  is  no  dispute  in  regard  to  anything,  we  just  simply  put  a  piece  of  paper 
with  muq,ge  over  the  top  where  they  put  the  ballot  in,  and  then  over  the  key-hole 
another  p,e  of  paper  with  mucilage  ;  did  not  seal  it  or  put  the  name  on  it. 

Poll  — Was  sealed  with  wax  on  top,  but  nothing  was  placed  over 
.   key-hole 

Talbot Democi*atic  commissioner,  poll  5  (p.  47): 

Q.  Aftenu  finished  the  count  what  did  you  do  with  the  tickets  ? — A.  We  placed 
them  in  tibox  and  sealed  it.  I  do  not  think  that  the  opening  of  the  lock  was 
sealed. 

Colemf  Republican  commissioner,  poll  5  (p.  256) : 
<^.  Did  yseal  the  box  before  bringing  it  to  the  court-house? — A.  Yes,  sir. 


168  DIGEST    OF    ELECTION    CASES. 

Q.  In  what  manner  ? — A.  I  sealed  it  over  the  hole  where  the  ballots  was  shoved  in. 
The  key-hole,  I  did  not  seal  it.  I  sealed  the  ballot-hole,  and  delivered  the  box  to  the 
constable.  I  kept  the  key  nntil  the  box  was  delivered  to  the  clerk  of  the  co-art ;  then 
I  delivered  him  the  key. 

Q.  Were  yon  assisted  in  sealing  the  box  by  the  other  commissioners  ? — A.  "^es,  sir ; 
I  was. 

Q.  Did  yon  place  any  seal  or  any  paper  over  the  key-hole?— A.  No,  sir;  none  at  all. 

Q.  From  the  manner  in  which  those  boxes  were  sealed  and  delivered  to  the  cUrk'» 
oflBce,  could  the  box  have  been  unlocked  and  the  tickets  changed  at  any  time?--A. 
Of  course. 

Parker,  Kepublican,  United  States  supervisor  (p.  259) : 

Q.  What  did  you  do  with  the  ballots  after  counting  them  ?— A.  Put  them  in  the  box 
and  sealed  the  ballot-hole. 
Q.  On  top  of  the  box  ? — A.  Yes,  sir. 

Q.  How  was  it  sealed  ? — A.  It  was  crossed  with  wax  and  burned  so  it  would  stick. 
Q.  Did  the  commissioners  sign  their  names  on  it? — A.  Yee,  sir;  they  did. 
Q.  Did  yon  sign  your  name  on  it  ? — A.  No,  sir. 
Q.  Only  the  State  officers  signed  their  names? — A.  Yes,  sir. 
Q.  How  did  you  seal  the  key-hole? — A.  We  didn't  seal  the  key-hole  at  all. 
Q.  Did  you  place  anything  over  the  key-hole? — A.  No,  sir ;  they  did  not. 

FROM  WHOM   THE    BALLOT-BOXES    WERE  RECEIVED    AND   HOW  KFPT 
BY   THE   CLERK  OF   COURT. 

Crowell,  clerk  of  court  when  election  was  held  (pp.  59,  60) : 

Q.  After  the  election  did  you  receive  all  the  boxes  according  to  law  ?  Werethey 
delivered  by  the  commissioners? — A.  I  received  the  chief  part  of  them  from  thfcora- 
missioners.  I  received  two  or  three  from  the  clerk  of  the  registrar  here,  I  brieve. 
By  mistake  they  delivered  them  at  his  office  instead  of  here. 

Q.  Have  the  boxes  since  you  have  received  them  been  in  your  sole  possessiof  up  to 
the  time  of  your  delivering  them  to  your  successor  ? — A.  Yes,  sir.  / 

(The  clerk  here  brought  in  the  box  from  poll  No.  7. )  ' 

Q.  Mr.  Adonis  Le  Blanc  said  that  ho  could  not  distinctly  testify  as  to  that  bo.  Can 
you  swear  that  that  was  the  box  delivered  to  j'ou  from  that  x>oll,  as  clerk  of  thcotirt  f 
— A.  I  know  that  it  is,  and  the  reason  is  that  I  observed  that  they  did  not?omply 
with  the  law  in  regard  to  putting  the  names  on  it.  This  box  came  from  D^onde's 
office  to  this  office. 

Q.  Does  everybody  have  access  through  this  door  during  the  day  ? — A.  Tfe  boxes 
were  deposited  here  in  the  clerk's  office  whilst  I  was  clerk,  and  I  had  theuviled  up 
here. 

Q.  Are  all  these  windows  closed  every  night  ? — A.  Yes,  sir ;  it  is  the  clerk,'duty  to 
do  it. 

Q.  You  carried  the  key  of  the  office  while  yon  were  clerk? — A.  Yes,  sir.    ' 

Ql  As  there  are  no  other  papers  on  that  box  from  poll  No.  7,  how  do  you  fentify  it 
from  the  others  ? — A.  That  is  what  I  observed  on  the  box,  and  that  is  the  ^y  I  iden- 
tify it  now.     I  remember  it  as  coming  from  poll  No.  7. 

Q.  But  you  do  not  know  whether  these  papers  were  on  it  or  not? — A.  lat  is  th& 
way  I  identify  it.     I  noticed  they  had  not  complied  with  the  law. 

Gordon,  elected  clerk,  Acklen's  witness  (pp.  60,  61) :      .       I 

Q.  Yon  are  at  present  clerk  of  the  parish  court  ? — A.  Yes,  sir.  i 

Q.  You  are  at  present  in  custody  of  the  ballot-boxes  in  this  court? — A.hs,  sir. 

Q.  Who  delivered  them  to  you  ? — A.  My  predecessor.  Judge  Crowell.    i 

Q.  Have  those  boxes  been  in  your  sole  possession  ever  since  they  were  pvered  to 
you  up  to  the  present  time? — A.  Yes,  sir.  i 

Q.  Can  yoii  swear  positively,  beyond  all  question,  that  to  the  best  of  |ur  knowl- 
edge these  boxes  have  been  safely  in  your  keeping  up  tothe  present  time  ?i.  Yes,  sir.. 

Q.  Are  the  fastenings  of  the  clerk's  office  here  secure  ? — A.  Yes,  sir.  /ays  when 
we  go  away  from  here  at  night  we  fasten  these  windows  on  the  outsidland  when 
they  slam  to  they  cannot  be  opened  from  the  outside  at  all.  ' 

Q.  If  there  had  been  any  entrance  made  into  the  building  during  yourSence  from, 
it  could  you  have  detected  it  ? — A.  Yes,  sir  ;  they  would  have  had  to  bjk  the  lock 
or  pulled  out  the  wedge  from  the  fastenings  of  the  windows.  I  am  hefluring  the 
day  all  the  time. 

Q.  One  of  the  witnesses  testified  that  he  did  not  remember  a  certain  ij  because  it 
did  not  have  his  signature  on  it.     You  have  exiuiiined  the  box,  and  the  Jge  has  tes- 


ACKLEN   VS.    DARRALL.  169 

tifiedthat  that  was  the  box  delivered  to  him  and  that  it  was  iu  the  same  condition  in 
which  it  was  delivered  by  the  witness.  Is  that  the  box  that  he  delivered  over  to  you  T" 
[Shown  box  alreatly  prodnced  by  the  clerk.] — A.  That  is  the  same  box  that  was  de- 
livered to  me  by  my  predecessor 

Q.  Is  it  iu  the  same  couditiou  in  which  you  received  it  ? — A.  Yes,  sir. 

Q.  Now,  one  of  the  witnesses  noticed  that  over  the  key-hole  of  one  box  the  paper 
had  been  fractured.  These  boxes  have  been  iu  your  possession.  How  do  you  account 
for  that  ? — A.  Well,  from  the  simple  fact  that  anybody  can  come  to  this  oflQce  and  ex- 
amine these  boxes  and  sit  iu  the  office,  and  all  my  predecessors  will  tell  you  that  the 
office  is  very  damp  and  you  can  catch  the  pneumonia  or  anything  else  here.  For  this 
reason  I  say  that  the  dampness  has  softened  the  wax  iu  such  a  way  that  the  papers 
have  become  loose  ;  and  I  think  it  very  likely,  too,  that  in  removing  the  boxes  from  this 
place  to  that  place  I  may  have  dented  them  in  some  way.  Every  day  I  sweep  up  this 
office,  and  you  will  find  that  considerable  dust  accumulates,  and  very  likely  in  dusting 
the  box  I  might  have  knocked  a  hole  in  it,  or  at  least  in  the  paper. 

[The  witness  here  produced  a  worn-out  and  dilapidated  duster  and  exhibited  it  to 
the  judge  and  the  bystanders.] 

Q.  Is  not  that  a  very  poor  brush  ? — A.  Yes,  sir. 

Q.  Everything  is  nearly  worn  off,  except  the  stick  part  of  it,  is  it  not  T — A.  Yes,  sir ;. 
nearly  everything. 

Q.  These  boxes  have  been  moved  several  times,  have  they  not  ? — A.  Yes,  sir.  That 
table  there  used  to  run  right  alongside  this  window,  and  I  took  them  away  from  there 
and  put  them  underneath  to  give  me  room.  Then  afterwards  we  changed  them  around 
so  that  we  could  open  the  blinds,  and  I  put  them  where  they  are  now. 

Q.  That  is  the  only  box  that  shows  any  fracture  of  the  papers  on  it,  and  you  account 
for  that  through  the  moVing  of  the  boxes  or  some  carelessness  or  something  of  that 
kind? — A.  Yes,  sir;  carelessness  on  my  part  in  moving  them. 

Q.  Have  you  the  keys  of  all  these  boxes? — A.  Yes,  sir;  they  are  in  my  possession  in, 
the  office  somewhere,  but  I  would  have  to  look  for  them. 

Q.  Do  you  know  where  they  are  now  ? — A.  No,  sir ;  but  they  are  in  the  office. 

Q.  They  are  in  some  of  the  pigeon-holes  ? — A.  They  are  inside  of  the  desk,  I  guess.^ 

Q.  You  do  not  carry  them  with  you  at  all  ? — A.  No,  sir. 

Landry,  deputy  clerk,  Democrat  (p.  62): 

Q.  You  see  the  boxes  every  day  or  two? — A.  Yes,  sir. 

Q.  If  they  had  been  tampered  with  overnight  or  at  any  time  would  that  fact  have 
been  noticed  by  you,  do  you  think? — A.  Yes,  sir;  so  far  as  I  know,  the  boxes  have 
never  been  tampered  with,  so  far  as  taking  any  papers  out  or  adding  any  papers  to 
them  or  anything  of  that  kind 

Q.  Is  this  court-house  not  very  damp  ? — A.  Yes,  sir ;  I  say  that  the  dampness  of  the 
office  would  affect  the  seals  of  the  boxes  if  they  are  sealed  with  mucilage.  Now,  I  do 
not  know  whether  it  could  affect  the  sealing-wax,  but  if  the  dampness  does  affect  the 
sealing-wax  they  would  be  affected  in  this  office,  because  this  office  is  very  damp. 

Q.  Have  not  those  boxes  been  removed  several  times  f — A.  They  were  moved  twice 
to  my  knowledge. 

Q,  Is  it  not  possible  that  some  of  those  papera  on  the  boxes  and  some  of  the  wax 
might  have  been  loosened  by  the  moving  of  those  boxes  ? — A.  Yes,  sir ;  on  account  of 
the  dampness,  which  might  have  unglued  some  of  the  paper  on  them.     In  moving  them 
some  of  the  jiapers  might  have  dropped  off,  for  all  I  know.     You  will  find  even  now 
that  some  of  them  are  very  loose. 

Cross-examined  by  Mr.  Jolley  : 

Q.  Those  boxes  that  have  the  papers  broken  on  them  were  scaled  with  wax  T — A. 
Well,  I  could  not  swear  to  that  fact.  I  could  only  swear  to  them  as  I  see  them  now, 
that  they  are  sealed  with  wax.  I  never  examined  the  boxes  to  see  what  they  were 
sealed  with  when  they  first  came  in. 

Q.  Did  you  ever  examine  those  boxes  before  to-day  as  carefully  as  you  have  now 
since  you  have  been  here  as  deputy  clerk  ? — A.  Well,  I  cannot  say  that  I  examined  all 
of  them  carefully.  I  examined  some  of  them  the  other  day.  The  clerk,  in  order  to 
make  more  room,  moved  them  the  other  day  and  corded  them  as  you  see  them  there, 
and  I  remarked  that  some  of  them  seemed  to  be  loose.  I  did  not  pay  attention  which 
boxes  particularly  were  loose  or  not,  but  I  noticed  that  some  of  the  labels  were  en- 
tirely unglued. 

THE  LAW  OF  LOUISIANA   AS  TO  THE  APPOINTMENT  OF  OFFICERS  OF 

ELECTION. 

The  statute  of  Loaisiana  makes  the  following  provision : 

Sec.  8.  Be  it  further  evaded,  ^c.  That  the  election  at  each  imll  or  voting  place  shall 


170  DIGEST    OF    ELECTION    CASES. 

be  presided  over  by  three  commissioners  of  election,  residents  of  the  parish  for  at  least 
twelve  months  next  preceding  the  day  of  election,  who  shall  be  selected  from  different 
political  parties,  and  be  of  good  standing  in  the  party  to  which  they  belong,  and  who 
shall,  before  entering  upon  the  discharge  of  their  duties,  take  and  subscribe  the  oath 
prescribed  for  State  oflScers.  Should  only  one  of  the  commissioners  appointed  be  pres- 
ent at  the  hour  for  opening  the  poll,  he  shall  appoint  another,  and  both  together  shall 
appoint  a  third,  and  the  commissioners  so  appointed  shall  take  the  oath  and  perform 
all  the  duties  of  commissioners  of  election  in  the  same  manner  as  if  they  had  been 
appointed  as  provided  for  regular  appointment  of  commissioners  by  this  act.  Any  one 
of  the  commissioners  shall  be  authorized  to  administer  the  oath  to  the  other  commis- 
sioners. 

This  law  was  carefully  complied  with,  as  appears  from  the  following 
testimony.  It  will  be  noticed  that  selections  were  made  from  both 
political  parties  ;  that  those  selections  were  made  on  the  recommenda- 
tion of  the  president  of  the  parish  committees  of  the  two  parties  re- 
spectively. It  is  to  be  presumed  that  the  men  thus  recommended  and 
selected  would  be  men  whom  the  respective  parties  had  confidence  in 
and  felt  they  could  rely  upon  to  see  that  the  utmost  fairness  prevailed 
in  the  voting  and  in  the  counting  of  the  votes.  But,  in  addition  to  this 
presumption,  we  have  the  testimony  directly  showing  that  they  were 
fit  and  competent  men. 

F.  V.  Deslonde,  Eepublican,  parish  supervisor  (pp.  204  and  206) : 

Question.  Mr.  Deslonde,  upon  whose  recommendation  did  you  appoint  the  commis- 
sioners of  election? — Answer.  Of  the  chairman  of  the  Democratic  committee  and  a 
member  of  the  Eepublican  or  the  president  of  the  Republican  committee. 

Q.  State  who  was  the  president  of  the  Republican  parish  committee. — A.  I  be- 
lieve it  was  P.  G.  Deslonde. 

Q.  Who  was  the  president  of  the  Democratic  parish  committee  ? — A.  Jacob  McWill- 
iams. 

Q.  Did  you  request  in  writing  the  chairman  of  the  Republican  committee  to  furnish 
you  names  of  commissioners  ? — A.  Yes,  sir ;  I  did. 

Q.  Did  you  make  the  same  request  in  writing  to  the  chairman  of  the  Democratic 
committee  ? — A.  I  did. 

Q.  Did  they  furnish  you  the  names  of  the  varions  commissioners  of  the  polls  1 — A. 
They  did. 

Q.  Did  you  know  the  commissioners  at  poll  5,  in  the  third  ward  ? — A.  Mr.  Tolbert 
was  one. 

Q.  What  was  the  number  of  the  commissioners  at  that  poll? — A.  I  recollect  two; 
Mr.  Tolbert  on  the  Democratic  side  and  George  Buttrick  on  the  Republican  side. 

Q.  Were  they  all  competent  men  ? — A.  They  was. 

Q.  Did  you  consider,  as  far  as  you  know  or  are  acquainted,  that  the  commissioners 
of  election  at  all  of  these  different  polls  were  competent,  intelligent  men  to  perform  the 
duties  of  the  office  ? — A.  They  was. 

Q.  What  was  the  vote  of  the  Grosse  T6te  poll? — A.  That  is  the  only  box  that  went 
against  Dr.  Darrall  as  returned,  because  it  is  the  closest,  and  Dr.  Darrall  had  one  hun- 
dred and  odd  votes  and  Mr.  Acklen  two  hundred  and  odd  votes. 

Q.  Mr.  Deslonde,  you  made  your  consolidated  return  from  the  returns  &a  given  you 
by  the  commissioners  of  election  ? — A.  Yes,  sir. 

Q.  You  then  swore  to  the  correctness  of  your  returns  as  based  upon  the  returns  as 
made  by  the  commissioners  ? — A.  Yes,  sir ;  I  swore  each  one  of  them  after  they  made 
their  returns  to  me,  and  then  I  go  to  the  clerk  of  the  court  and  swear  to  my  consoli- 
ilated  returns. 

Hon.  George  Wailes,  Democratic  candidate  for  senate  (pp.  116,  117, 
118):  \t^f  ,         , 

Q.  You  were  the  regular  nominee  of  the  Democratic  party  for  senator  from  this  dis- 
trict, were  you  not  ? — A.  Yes,  sir. 

Q.  Were  you  a  member  of  the  Democratic  parish  executive  committee  f— A.  No,  sir  ; 
I  was  not. 

Q.  Did  the  Democratic  party  have  a  representative  at  each  poll  in  the  parish  ? — A. 
Well,  I  was  present  only  at  this  poll,  but  I  suppose  they  did.  I  have  no  doubt  that 
they  did  have,  and  iu  fact  it  was  understood  that  they  did  have. 

Q.  Was  not  a  Democratic  commissioner  appointed  by  the  registrar  for  each  poll  in 
the  parish  ? — A.  I  believe  so,  sir. 

Q.  Was  not  a  Democratic  United  States  supervisor  appointed  for  each  poll  in  the 


ACKLEN    VS.    DARRALL.  171 

I»arisli  ? — A.  Well,  I  cauuot  tell  you  that.    I  presume  so,  but  I  do  not  know  that  there 
was. 

Q.  Wa.s  it  generally  known  to  the  Democratic  party  of  this  parish  that  Mr.  Wharton 
■was  sni>porting  Mr.  Acklen  previous  to  the  electicm  ? — A.  Yes,  sir ;  I  think  it  was  gen- 
erally known.  The  fact  is  that  the  question  was  discussed  in  the  Democratic  party 
in  this  parish  as  to  whether  or  not  they  would  run  a  candidate  for  the  senate.  Some 
gentlemen  of  the  party  were  in  favor  of  making  no  nomination  at  all,  and  of  casting 
the  vote  for  Wharton,  or  allowing  the  vote  to  be  split  up,  thinking  that  we  could  ac- 
complish something  by  that ;  but  the  party  in  convention  determiried  differently. 
They,  Therefore,  nominated  me  and  brought  me  out  two  days  before  the  election.  I 
was  not  announced  as  a  candidate  until  my  name  appeared  upon  the  tickets. 

Q.  Did  the  leading  Democrats  of  the  parish  knoAv  that  Mr.  ^cklen's  name  was  on 
the  regular  Republican  ticket  for  Congress? — A.  I  think  they  did,  sir. 

Q.  Then  it  was  generally  known  by  the  party  in  that  parish  that  his  name  was 
printed  on  the  regular  Republican  ticket? — A.  Well,  it  was  generally  known  thathia 
name  was  on  the  ticket  that  we  considered  as  the  regular  Republican  ticket.  We 
knew  that  there  were  Republican  tickets  upon  which  his  name  did  not  appear,  though. 

Q.  The}'  knew,  of  course,  that  Mr.  Darrall's  name  was  on  the  ticket  also,  and  that 
be  was  the  regular  nominee  of  the  Republican  party  for  Congress  ? — A.  Yes,  sir. 

Q.  They  knew  also  that  there  was  a  regular  Republican  ticket  in  existence  with  the 
Congressman's  name  left  in  blank? — A.  Yes,  sir  ;  they  knew  that  also  ;  it  was  a  Re- 
publican ticket  in  all  respects,  except  that  there  was  a  blank  left  for  the  Congress- 
man ;  it  contained  the  names  of  the  Republican  electors  and  the  candidates  for  the 
State  otidces,  and  so  on. 

Q.  W'ere  not  the  Democratic  commissioners  at  the  different  polls  competent  and 
energetic  men  f — A.  Well,  I  do  not  recollect  who  the  commissioners  were.  The  coiu- 
luissioners  at  the  poll  in  this  place  were  competent  and  intelligent  men. 

Q.  Do  you  know  Mr.  Edward  Talbot  ? — A.  Yes,  sir. 

Q.  Is  he  a  competent  man,  and  was  he  an  energetic  supporter  of  the  Democratic 
party  ? — A.  Yes,  sir. 

Q.  Do  you  know  Mr.  Gonrrier  ? — A.  Yes,  sir. 

Q.  He  was  a  strong  supporter  of  the  Democratic  party,  was  he  not  ? — A.  Yes,  sir; 
I  think  so. 

Q.  Both  of  those  gentlemen  were  supporters  of  Mr.  Acklen  ? — A.  Yes,  sir  ;  as  far  as 
I  knew,  they  were. 

Q.  Do  you  know  Mr.  Julian  AUain? — A.  Yes,  sir. 

Q.  Is  he  a  strong  supporter  of  the  Democratic  party? — A.  Yes,  sir;  he  is  a  Demo- 
crat. He  has  since  removed  from  this  parish.  I  think  he  was  always  considered  to  be 
a  consistent  Democrat. 

Q.  Is  he  a  competent  man  ? — A.  O,  yes,  sir. 

Q.  Do  you  know  Felix  Roux  ? — A.  Yes,  sir. 

Q.  Is  he  a  representative  of  the  Democratic  party  ? — A.  He  is  a  Democrat,  sir. 

Q.  Ik  he  a  competent  man  ? — A.  I  think  he  is  competent  to  fill  the  place  of  commis- 
sioner. 

Q.  Do  yon  know  William  A.  Smith? — A.  Yes,  sir. 

Q.  W^hat  are  his  politics  ? — A.  I  think  he  is  a  Democrat,  although  he  voted  for  some 
of  the  Republican  ofiBcers  in  this  parish — some  of  the  candidates  for  parochial  ofiQces. 

Q.  Was  he  a  supporter  of  Mr.  Acklen  for  Congress? — A.  I  presume  he  was,  but  I 
do  not  know  it. 

Q.  lb  he  a  competent  man  for  commissioner  ? — A.  Well,  he  is  not  a  very  active  man, 
sir;  I  think  he  is  a  little  slow.  He  does  not  write  very  well.  He  is  a  very  honest 
gentleman  and  stands  very  high  in  the  community.  His  education  is  not  the  very 
best. 

Q.  He  reads  well? — A.  I  think  he  does;  yes,  sir. 

Q.  He  reads  well  enough  to  discover  the  name  of  Mr.  Acklen  on  the  Republican 
ticket  by  examining  it? — A.  Yes,  sir;  no  doubt  of  that. 

Q.  Do  you  know  Mr.  Amad^e  Roux  ? — A.  Yes,  sir. 

Q.  Was  he  a  competent  commissioner  ? — A.  I  believe  so. 

Q.  Was  he  a  Democrat  ? — A.  Yes,  sir ;  I  believe  so. 

Q.  Do  you  think  these  different  gentlemen  whom  I  have  named,  and  whom  you  say 
you  know,  would  have  allowed  anything  wrong  to  occur  in  any  way  duringthe  count- 
ing of  the  votes? — A.  I  do  not  think  they  would,  sir;  not  one  of  them. 

Q.  Do  you  think  they  would  have  been  diligent  in  examining  the  ballots  to  see  that 
nothing  wrong  occurred  in  the  counting? — A.  Well,  I  presume  they  would  have  been. 
1  do  not  know  what  they  actually  did  do,  except  at  this  poll  here. 

Q.  Do  you  think  that  they  would  certify  and  swear  to  a  return  without  knowing  of 
their  own  knowledge  that  it  was  correct  ? — A.  I  do  not  think  they  would  certify  and 
swear  to  a  return  unless  thev  believed  it  to  be  correct. 


172  DIGEST    OF    ELECTION    CASES. 

DISTRIBUTION   OF    REPUBLICAN  TICKETS  WITH   CONTESTANT'S    NAME 

ON   THEM. 

Contestant  attempts  to  streugtlien  his  claim  that  there  was  a  mistake 
in  the  official  count  by  trying  to  prove  that  Eepublican  tickets  were 
printed  aud  distributed  with  contestant's  name  on  them. 

That  such  tickets  were  printed  is  proven ;  that  tbey  were  carried  into 
the  parish  in  question  is  also  proven  ;  and  that  they  were  attempted  to 
be  gotten  into  the  hands  of  the  voters  and  the  voters  to  be  cheated  by 
means  of  them  is  also  quite  clear,  but  it  is  equally  clear  that  they  were 
not  distributed  to  the  voters  to  any  considerable  extent. 

This  fraud  on  the  voters  was  attempted  to  be  perpetrated  by  W.  W. 
Wharton,  and,  as  will  be  seen  by  the  subjoined  testimony,  he  brought 
the  tickets  from  New  Orleans  in  bulk,  and  distributed  them  in  bulk  to 
the  persons  named,  for  use  ai  the  different  polls.  That  they  were  not 
distributed  to  the  voters,  and  that  they  were  in  some  cases  destroyed, 
appears  from  testimony  below.  It  is  shown  by  Wharton  (witness  for 
contestant)  that  he  delivered  the  tickets  for  distribution  at  polls  1  and 
2,  to  Hon.  J.  S.  Davidson,  to  George  Deslonde,  to  James  H.  Tate,  and 
a  man  (name  not  known)  sent  by  Davidson  for  tickets.  (See  Whar- 
ton's evidence,  pp.  122  and  126.) 

Q.  To  whom  did  yon  give  tickets  to  distribute  iii  the  first  ward  ? — A.  Deslonde, 
Davidson,  Tate,  and  some  one  else  who  was  up  here  with  them.  A  strong  friend  of 
mine  down  there  came  up  for  some.  I  forget  his  name  now.  I  sent  some  by  Mr.  Tate 
and  by  some  one  else  that  Davidson  sent  here  fromBayon  Goula  to  get  some  tickets. 

Q.  Was  not  that  man's  name  Handy? — A.  I  forget  his  name  now. 

This  is  all  the  evidence  the  contestant  offers  as  to  distribution  of 
tickets  at  these  two  polls.  Davidson  testifies  as  follows  (pp.  248  and 
249): 

Q.  Did  you  take  the  tickets  to  your  ward? — A.  I  took  them  down  there. 

Q.  Where  did  you  get  the^e  tickets,  and  of  whom  ? — A.  I-got  the  tickets  from  Major 
Wharton — well,  about  sunset,  at  his  room.  I  went  to  get  tickets  on  Monday,  the  day 
previous  to  the  election,  and  we  were  detained  there  all  day,  because  the  tickets  were 
not  ready,  and  about  sunset  we  went  ijito  the  room  where  the  tickets  was.  Mr. 
Wharton  told  us  the  tickets  were  ready.  He  had  the  tickets  all  bundled  up  iu  bun- 
dles. He  asked  me  if  I  would  distribute  some  Republican  tickets  with  Mi-.  Acklen's 
name  on  them.  I  told  him  no.  He  said,  "  Why  ?  "  I  said,  because  I  was  a  man  ;  that 
is,  when  I  wanted  to  beat  a  man,  I  wanted  to  be  honest  about  it.  That  if  I  wanted 
to  beat  Mr.  Darrall  I  wanted  to  be  honest  abont  it.  I  wanted  to  take  one  stand.  He 
insisted  on  me  to  take  the  tickets  down.  I  told  him  no,  I  did  not  want  to  distribute 
them  or  to  have  anything  to  do  with  them.  After  he  insisted  on  me  to  take  them  I 
took  the  tickets.  He  had  the  tickets  all  bundled  up.  I  asked  him  how  many  ticket* 
there  were  there.  He  said  two  thousand,  and  then  I  said,  **  Give  them  to  me,"  and 
he  gave  them  to  me ;  and  after  looking  into  them,  I  think,  perhaps  that  there  were 
two  thousand.  I  did  not  know  how  many  of  these  Acklen  tickets  there  were  in  there. 
I  did  not  know  how  many  there  might  be  among  them  ;  consequently  I  told  him  to 
give  me  two  thousand  five  hundred  tickets,  and  he  gave  them  to  me  and  Mr.  Whita- 
ker,  another  gentleman  who  was  i.long  with  me,  ana  was"  one  of  the  marshals  to  take 
charge  of  the  bo?.  I  came  out  and  stated  to  him — I  told  him  of  what  proposition 
that  had  been  made  to  me ;  that  is,  that  the  senator  asked  me  to  distribute  these 
tickets  in  this  manner,  and  I  told  him  I  didn't  think  it  was  right.  He  said,  "  Come- 
down to  my  room,  and  we  will  scrutinize  these  tickets,"  and  we  went  down  to  hia 
room  about  7  or  half  past  7,  on  the  Bayou  Goula,  and  me  and  Mr.  Whitaker  stopped 
there,  and  there  we  examined  these  tickets.  In  examining  these  tickets  I  found  that 
there  was  about  a  thousand  of  the  Republican  tickets  with  Mr.  Acklen's  name  on 
them.  I  took  them  out,  me  and  Mr.  Whitaker,  and  put  them  aside.  We  put  the  bal- 
ance of  the  tickets  into  the  box,  and  he  took  them  down  to  his  room,  about  a  couple 
of  acres  away  from  where  I  reside. 

Q.  The  other  tickets  that  were  left  in  the  box,  what  kind  of  tickets  were  they  that 
you  put  in  the  box  ;  the  fifteen  hundred  that  Mr.  Whitaker  took  f— A.  The  straight 
Republican  tickets. 

Q.  What  became  of  those  tickets  t  !ien  T  When  did  you  begin  distributing  them  f — 
A.  In  the  morning,  just  after  the  polls  opened. 


ACKLEN    VS.    DARRALL.  173 

Q.  Did  you  distribute  any  of  the  tickets  with  Mr.  Acklen'a  name  ? — A.  No,  sir ;  I  had 
them  at  my  room. 

Q.  Were  thtn*  taken  ont  of  your  room  ? — A.  No,  sir. 

Q.  What  fiually  became  of  those  tickets? — A.  I  burned  them  up. 

Q.  Did  yoTi  burn  np  all  of  them  f — A.  I  burned  all  of  them  that  came  down  with. 
uie  ;  all  of  the  thousand  flijkets. 

Q.  Who  distributed  tickets  on  the  morning  of  the  election  beside  yourself  and  Mr. 
Whitaker,  or  did  you  distribute  all  the  tickets  ? — A.  I  diHtributed  the  tickets  to  men 
there  who  gave  them  out  to  other  men.  I  distributed  them  to  men  who  could  read 
and  write. 

Q.  How  was  there  more  than  one  poll  in  that  ward,  Mr.  Davidson  ? — A.  There  were 
two. 

Q.  What  was  the  other  poll  in  the  ward ;  do  yon  know  T — A.  No.  1 ;  the  one  that  I 
have  been  referring  to  is  No.  "2. 

Q.  Where  was  the  poll  No.  1  at  ? — A.  At  Adams's  plantation. 

Q.  Did  you  also  .seud  the  tickets,  the  Republican  tickets,  to  that  poll? — A.  I  took 
them  there  ;  yes,  sir. 

Q.  Did  yon  take  them  there  ? — A.  I  did. 

Q.  lu  what  hands  did  you  place  them  for  distribution  ? — A.  In  Mr.  E.  Verrett's. 

Q.  What  kind  of  tickets  did  you  give  Mr.  Verrett  for  distribution  at  that  poll! — A. 
The  straight  Republican  ticket. 

Q.  Do  you  remember  about  the  number  that  you  gave  him  T — A.  I  gave  him  five 
hundred. 

Q.  Did  you  send  him  any  more  tickets  than  live  hundred  that  you  gave  him  for  that 
poll  ? — A.  Yes,  sir.     I  wrote  to  Major  Wharton  for  them. 

Q.  How  many  of  these  tickets  did  you  send  him  ? — A.  I  sent  him  five  hundred  more 
by  an  open  note  the  next  morning.  The  gentleman  who  I  sent  with  them  brought 
them,  and  on  examining  them  I  found  they  were  printed  blank  for  member  of  Con- 
gress. I  took  them  down  then  and  I  gave  them  to  Mr.  Verrett,  and  told  him  not  to 
distribute  more  than  one  ticket  at  a  time  of  the  straight  tickets,  so  if  they  had  enough 
he  would  not  have  to  use  these  blank  tickets;  but  whether  he  used  any  of  them  or  not 
I  am  not  able  to  say. 

Q.  \A'as  Mr.  Verrett  an  oflScer  at  that  poll  ? — A.  Yes ;  United  States  supervisor. 

Q.  Did  you  tell  him  about  these  Acklen  tickets  being  in  existence? — A.  Yes,  sir. 

Q.  Did  you  give  him  any  warning  in  regard  to  them  ? — A.  I  did. 

Q.  Please  state  it. — A.  I  told  him  there  was  such  tickets.  Republican  tickets  with 
Acklen's  name  on  it,  but  1  was  satisfied  there  was  none  of  them  iu  that  package  I  gave 
him,  and  to  be  particular  about  distributing  them,  because  there  might  not  be  enough. 
I  told  him  to  be  careful  about  distributing  them.  I  reiterated  to  him  that  if  there  was 
not  enough  of  these  htraight  Republican  tickets  he  would  have  to  use  these  blanks. 

Q.  Then  after  giving  Mr.  Verrett  three  hundred  of  the  straight  Republican  tickets 
you  had  about  one  thousand  left  for  your  poll  ? — A.  Yes,  sir. 

Q.  Were  these  enough  for  distribution  at  this  poll* — A.  More  than  enough. 

Desloude  testifies  (p.  201)  iliat  he  did  not  receive  any  of  these  bogus 
ticfeets  from  Wharton  and  distributed  none. 

Tate  (p.  57)  testifies  that  he  saw  tickets  at  poll  1  with  no  name  on  for 
Congress.  These  were  the  tickets  taken  by  Davidson  in  the  second 
package  and  given  Verrett,  80  of  which  blank  tickets  were  shown  to 
have  been  voted  by  the  returns  of  the  commissioners  at  that  poll. 
This  appears  in  the  count  upon  which  Darrall's  certificate  was  issued. 

The  evidence  is  conclusive  that  none  of  the  bogus  tickets  with 
Acklen's  name  on  were  in  circulation  or  voted  at  these  two  polls,  and 
yet  it  is  claimed  by  the  contestant  that  according  to  his  recount  there 
were  voted  at  poll  1, 106  of  the  spurious  Republican  tickets,  and  at  poll 
2,  226,  which  were  not  discovered  iu  making  the  oflScial  count.  And 
this  preposterous  claim  is  set  up  iu  face  of  the  above  facts,  as  well  as  of 
the  extreme  care  with  which  it  is  shown  by  the  evidence  of  both  Demo- 
cratic and  Republican  officer?  of  election  the  ballots  at  these  polls  were 
counted. 

Also  let  it  be  noticed  that  of  all  the  witnesses  who  were  examined 
regarding  these  two  polls  not  one  is  found  to  say  he  voted  one  of  the 
tickets  with  Acklen's  name  on. 

Wharton  further  says  (p.  196)  that  he  gave  the  tickets  for  poll  7  to 
Carville. 


174  DIGEST  OF  ELECTION  CASES. 

Hon.  J.  C.  Carville,  a  member  of  the  legislature,  testities  fullj^  ou  tliis 
point  (p.  196) : 

Q.  Did  you  distribute  the  Republican  tickets  iu  your  ward  ? — A.  I  did. 

Q.  Did  you  take  all  the  Republican  tickets  to  your  ward  aud  distribute  then;  ? — A, 
I  took  all  to  my  ward  and  distributed  them. 

Q.  To  no  other  ward  except  your  own  ? — A.  None,  only  my  own  Avard. 

Q.  What  ward  is  that  ?— A.  Ward  No.  5,  poll  7. 

Q.  Were  the  tickets  tuns  distributed  the  straight  Republican  ticket  with  the  name 
of  the  regnlitr  nominee  for  Congress  Jipoii  them  ? — A.  They  were. 

Q,  What  was  the  color  of  the  ticket  ? — A.  We  had  two ;  one  was  with  a  red  face,  and 
■we  had  another  ticker,  with  a  black  back  or  a  glaze  back  inclined  to  be  black. 

Q.  Were  there  any  tickets  distributed  at  your  poll  or  iu  circulation,  and  voted  by 
Republicans,  except  the  straight  Republican  ticket  having  the  name  of  the  regular 
nominee  for  Congress  on  it  f — A.  I  knew  of  none,  or  none  distributed. 

Q.  And  you  distributed  all  the  tickets  yourself? — A.  Yes,  sir. 

Various  witnesses  are  examined  bj^  contestant,  who  say  vaguely  they 
sent  tickets  with  Acklen's  name  on  to  this  poll,  but  it  is  not  shown  that 
any  of  such  tickets  were  taken  there.  Neither  is  it  attempted  to  be 
proven  that  a  single  one  of  these  bogus  tickets,  either  with  Acklen's 
name  on  or  blank,  were  voted,  or  even  seen  at  that  poll. 

In  face  of  these  facts,  contestant  claims  by  his  recount  that  21  of  the 
Acklen  tickets  and  73  blanks  were  voted  which  were  not  discovered  in 
making  the  official  count. 

The  evidence  above  given  is  conclusive,  and  not  contradicted,  that 
none  of  the  tickets  with  Acklen's  name  on  were  distributed  at  either 
of  these  three  polls.  Verrett  distributed,  as  was  said,  blank  tickets  at 
poll  1,  and  some  of  them  are  shown  by  the  official  count  to  have  been 
voted. 

The  fact  that  the  official  count  discloses  that  the  officers  of  election 
discovered  these  blank  tickets  in  making  that  official  count  is  conclu- 
sive that  the  officers  of  election  carefully  examined  the  tickets  in 
making  the  count,  and  leaves  no  room  for  doubt  that  if  Kepublican 
tickets  had  been  voted  with  Acklen's  name  on  them,  they  would  have 
been  discovered. 

Now,  in  the  first  place,  we  have  here  the  spectacle  of  the  contestant 
seeking  a  seat  in  the  House  by  reason  of  a  fraud  attempted  to  be  per- 
petrated upon  the  voters  of  that  parish.  This  fraud  thus  attempted  to 
be  perpetrated  upon  the  voters  of  that  parish  is  what  is  relied  upon  by 
the  contestant  to  secure  this  seat.  His  evidence  is  largely  directed  to 
proving  that  this  fraud  was  successfully  perpetrated  by  getting  the 
voters  to  deposit  these  spurious  tickets.  The  contestant's  case  is  there- 
fore one  not  to  be  looked  upon  with  favor. 

But  the  evidence  shows  that  the  perpetration  of  this  fraud  was  not 
accomplished.  The  officers  of  election  were  selected  from  both  parties, 
as  the  law  requires ;  bogus  tickets  were  not  distributed  or  voted. 

In  addition  to  this  the  testimony  proves  that  the  existence  of  these 
tickets  was  known  before  the  election. 

Hon.  George  Wailes,  Democratic  candidate  for  senate,  testifies  (p.  117) : 

Q.  Did  the  leading  Democrat*  of  the  parish  know  that  Mr.  Acklen's  name  was  on 
the  regular  Republican  ticket  for  Congress  f — A.  I  think  they  did,  sir. 

Q.  Then  it  was  generally  known  by  the  party  in  that  parish  that  his  name  was 
printed  on  the  regular  Republican  ticket? — A.  Well,  it  was  generally  known  that  his 
name  was  on  the  ticket  that  we  considered  as  the  regular  Republican  ticket.  We 
knew  that  there  were  Republican  tickets  upon  which  his  name  did  not  appear. 

George  Buttrick  (p.  238)  testifies : 

Q.  Did  you  see  any  Republican  ticket  on  the  day  of  election  that  did  not  have  the 
name  of  the  Republicau  nominee  upon  it  T — A.  No,  sir. 

Q.  Did  you  see  any  previous  to  the  day  of  election  ? — A.  I  did.  I  saw  a  ticket  the 
day  previous  to  the  election. 


ACKLEN    VS.    DARRALL. 


175 


Q.  What  kind  of  a  ticket  was  that  T  Did  it  resemble  the  regular  Republican  ticket?  — 
A.  Exactly;  except  that  Mr.  Acklen's  name  was  in  place  of  Mr.  Darrall's. 

Q.  Where  did  you  see  this  Republican  ticket  with  Acklen's  name? — A.  The  day  be- 
fore the  election  I  saw  it  in  the  office  of  the  Iberville  South,  a  Democratic  newspaper. 

Q.  Did  yon  see  more  than  the  one  ticket  at  any  time  before  the  election  or  on  the 
day  of  election  ? — A.  That  is  the  only  one  that  I  seen. 

As  has  already  appeared  in  the  evidence  before  quoted,  Davidson^ 
Carville,  and  others  knew,  of  the  existence  of  these  tickets. 

Then  there  is  the  fact  that  Democrats  and  Republicans  were  officers 
at  these  polls,  selected  upon  recommendation  of  the  parties  respectively, 
as  above  shown ;  then  there  is  the  additional  fact  that  the  official  count 
was  carefully  made.  Now,  in  the  face  of  the  fact  that  these  tickets 
were  known  to  be  in  existence  ;  that  they  were  gotten  up  for  the  pur- 
pose of  defeating  Darrall ;  that  both  Democrats  and  Republicans  knew 
of  all  this,  we  are  asked  to  believe  that  a  large  number  of  them  were 
voted,  and  yet  no  one  of  these  Democratic  officials  discovered,  in  mak- 
ing the  count,  that  the  name  of  Acklen  was  on  them  instead  of  that  of. 
Darrall. 

We  are  asked  to  believe  that  in  making  the  official  count  mistakes 
were  made  at  these  five  polling-places  which  we  have  been  considering, 
such  as  are  indicated  by  the  two  columns  following. 

Official  count,  page  280 : 

For  the  Forty-fifth  Congress,  third  Congressional  district.    • 


Nnmber  of  polls. 


■No.  iff  votes. 

1 {  218 

2 1  394 

5 1  207 

6 ,j  301 

7 187 

Total 1,307 


No.  of  votes. 
44 

us- 
es 

156 

58 


43S 


Eecount  (p.  13)  of  same  polls : 


PoU. 

•5 

Q 

1 

No.  of  votes. 
1               150 

No.  of  votes. 
139 

2 

1               340 

86 

5 

1               168 

7i^ 

6 

1               228 

99 

7 

J 1                 79 

9» 

499 


Thajb  is  to  say  (taking  for  example  poll  1),  we  are  asked  to  believe 
that  these  Democratic  officials  stood  by  and  saw  tickets  counted  for 
Darrall  to  the  number  of  218,  when  there  were  only  150  that  had  his 
name  on  them,  and  that  there  were  139  with  the  name  of  Acklen  on 
them,  when  only  44  were  counted  for  him.  This  is  simply  preposter- 
ous. Such  a  mistake,  in  the  nature  of  things,  could  not  have  occurred ; 
for  it  is  admitting  that  of  1,307  votes  counted  for  Darrall  808  of  them 
were  not  for  him,  and  no  one  noticed  it,  although  Democrats  and  Re- 
publicans were  both  counting  and  watching. 


176  DIGEST  OF  ELECTION  CASES. 

In  the  language  of  one  of  the  witnesses,  this  could  not  have  occurred 
^'  unless  we  were  blind." 

As  to  the  bogus  tickets  being  in  general  circulation  at  polls  5  and  6 
the  evidence  is  bj'  no  means  clear,  but  there  is  no  evidence  to  show  that 
more  than  one  was  voted,  while  the  officers  of  election  swear  positively 
that  these  bogus  tickets  were  not  in  the  boxes  when  they  counted 
the  ballots  on  the  day  of  election.  The  contestant  does,  however,  pro- 
duce evidence  to  prove  that  the  contestee  had  some  enemies  in  his  own 
party,  in  Iberville  Parish,  who  endeavored  to  defeat  him.  This  is  ad- 
mitted by  contestee,  and  the  committee  are  satisfied  that  such  was 
the  case,  for  an  examination  of  the  official  returns  from  that  parish 
jshows  that  Darrall,  the  contestee,  ran  behind  his  ticket  213  votes,  and 
the  contestant  ahead  of  his  ticket  113,  making  a  difference  against  the 
fitting  member  in  that  parish  of  326  votes,  which  sufficiently  accounts 
for  the  opposition  in  said  parish,  and  all  this  was  taken  into  the  account 
when  both  the  Kellogg  and  Nichols  returning-boards  gave  the  sitting 
member  his  certificate  of  election.  If  SOS  bogus  votes  were  cast  out  of 
a  total  of  1,307,  is  it  not  reasonable  to  suppose  that  15  or  20  of  them 
might  have  been  found  to  testify  to  that  fact  ?  and  this  would  be  the 
strongest  and  best  evidence  the  contestant  could  produce;  but  after  all 
the  effort  that  has  been  made  in  this  direction  but  otie  of  these  800  can 
be  f(mnd. 

The  committee  therefore  are  compelled  to  believe  that  these  tickets 
were  not  in  the  boxes  when  the  votes  were  counted,  on  the  day  of  elec- 
tion. Wharton's  testimony  referred  to  by  contestant  is  to  the  effect  that 
he  knew  on  the  day  of  the  election  that  the  count  was  incorrect;  now 
if  this  be  true,  why  did  not  he  or  contestant  have  a  recount  at  once, 
or  Avithin  the  time  prescribed  by  law  for  preserving  the  ballots  ?  Why 
wait  until  the  time  had  expired  fixed  by  law  for  keeping  the  ballot-boxes  1 
If  it  be  claimed  that  the  government  of  Louisiana  was  then  in  the  hands 
of  his  political  enemies,  and  that  that  was  the  reason,  the  committee  do 
not  understand  why  (it  that  was  the  reason)  a  recount  was  not  asked 
for  when  the  Nichols  government  came  into  power,  and  when  a  new  can- 
vass by  a  new  returning-board  was  had.  But  this  recount  was  not  asked 
for  until  it  was  discovered  that  this  new  returning-board  arrived  at  sub- 
fitantially  the  same  conclusion  as  the  old  one,  and  the  Democratic  gov- 
ernor gave  the  certificate  of  election  to  the  same  man  that  the  Eepublican 
governor  had.  And  it  must  not  be  forgotten  that  this  Democratic  gov- 
ernor never  did  give  a  certificate  to  the  contestant  in  this  case.  Although 
he  was  at  his  office  for  six  months  after  this  recount  he  issued  no  cer- 
tificate, and  none  was  issued  to  contestant  until  in  the  absence  of  the 
governor,  and  only  three  days  before  the  meeting  of  Congress,  the  lieu- 
tenant governor  issues  the  document  under  and  by  virtue  of  which  con- 
testant claims.    This,  to  say  the  least,  has  a  suspicious  look. 

SAINT  martin's  PARISH. 

Lieutenant-Governor  Wiltz  omits  Saint  Martin's  Parish  in  his  certifi- 
cate to  the  contestant. 

There  are  no  reasons  for  not  counting  this  parish.  The  contestant 
furnishes  no  evidence  whatever  to  show  unfairness  in  the  election  or 
fraud  in  the  returns.  The  evidence,  both  of  Democrats  and  Republicans 
in  the  record,  is  that  the  election  was  fair. 

The  Nichols  returning-board  returned  the  parish  for  Darrall  1,095,  for 
Acklen,  1,028. 

The  contestant  files  certificate  of  the  clerk  of  court,  that  the  records 
of  his  office  show  the  vote  as,  Darrall  1,095,  Acklen  1,028  (p.  16).    And 


ACKLEN    VS.    DAREALL. 


177 


the  uuconditional  agreemeut  of  the  parties  made  before  this  committee, 
which  is  hereafter  quoted,  gives  Darrall  1,095;  AcJclen  1,028. 

lu  a  contest  for  the  jyarish  offices,  the  Nichols'  returniiig-board  adopted, 
Jidi/  10,  1877,  a  resolution,  found  on  p.  13,  that  they  were  not  able  to 
decide  who  had  been  elected  to  those  offices.  This  in  no  way  applies  to 
the  vote  of  Saint  Martin's  for  member  of  Congress,  as  the  same  board 
had  already  canvassed  and  declared  the  Congressional  vote. 

LA  FOURCHE  PARISH. 

There  appear  in  the  record  various  returns  and  much  evidence  regard- 
ing La  Fourche. 

In  a  contest  as  to  parish  officers  the  matter  went  to  the  supreme  court 
of  the  State.  The  district  judge  had  decided  the  vote  for  sheriff  as 
Democratic  2,001,  Eepublican  2,017,  a  Eepublican  majority  of  16  (p.  11). 
Counting  all  the  polls,  and  allowing  the  votes  that  would  have  been 
polled  at  ward  8,  and  deducting  illegal  votes,  the  "  chief  justice  decides 
vote  for  sheriiJ"  as  Democratic  2,025,  Republican  1,983,  a  Democratic  ma- 
jority of  42.     (Seep.  12.) 

Lieutenant-Governor  Wiltz  in  his  certificate  to  coutest^ant  gives  the 
vote  of  La  Fourche  as  (p.  2) : 

Acklen 2,086 

Darrall 2,015 

Acklen's  majority 71 

And  we  have  allowed  that  to  stand  as  the  vote  in  our  computation. 

The  contestant  has  filed  what  is  termed  a  certificate  of  election  from 
Louis  A.  Wiltz,  lieutenant-governor  of  Louisiana.  This  certificate  was 
issued  October  12, 1877 ;  was  received  and  referred  to  this  committee  by 
the  House  October  16,  1877.  It  purports  to  be  based  upon  the  follow- 
ing: 

Consolidated  statement  of  the  aggregate  vote  of  the  parishes  constituting  the  third  Congres- 
sional district  of  the  State  of  Louisiana  at  an  election  held  on  the  7th  day  of  November, 
1876,  under  a  writ  of  election  dated  September  16,  1876,  for  Representatives  in  the  Forty- 
fifth  Congress  of  the  United  States,  together  tcith  the  recount  of  the  vote  of  the  parish  of 
Iberville  and  the  report  of  the  board  of  canvassers  in  relation  to  the  parish  of  Saint 
Martin'$,  in  the  third  Congressional  district. 


d 

a 

a . 

o 

'Ol 

Kames  of  parishes. 

P 

.a 

m 

A 

« 

t? 

Votes. 

Yot4Si. 

2,059 
1,692 
1,966 
2,385 

1,215 
1  679 

1  393 

1,423 
1,242 

Iberia 

1,455 

LaFavette 

661 

1,157 

228 

91 

69 

2,015 

955 

1  291 

226 

2,086 

rberville --. 

Total 

12,  621 

12,66S 

This,  it  will  be  observed,  embraces  the  five  polls  that  were  rejected  by  the  sopervisors  and  the  on« 
poll  that  was  rejected  by  the  Kellogg  retanuDg-board. 
It  will  farther  be  observed  that  it  entirely  omits  the  parishes  of  Saint  Martin's  and  Iberville^ 

H.  Mis.  58 12 


178  DIGEST    OF    ELECTION    CASES. 

This  statement  of  the  vote  by  parishes,  as  given  above,  is  identical 
with  the  count  of  the  Nicholas  returning-board,  only  that  Saint  Martin's 
and  Iberville  are  omitted. 

AGEEEaiENT   AS   TO   SAINT  MARTIN'S   PARISH. 

By  an  agreement  found  in  the  Record,  p.  172,  the  parties  to  this  con- 
test decide  to  count  Saint  Martin's  for  Darrall,  1,095 ;  for  Acklen,  1,027. 

Joseph  H.  Acklen     ) 

V8.  >  Before  the  Committee  on  Elections,  House  of  Representatives. 

Chester  B.  Darrall.  S 

It  is  hereby  stipulated  and  agreed  by  and  between  the  parties  contestant  and  con- 
testee  that,  in  the  consideration  and  determination  of  the  above-entitled  case,  the 
committee  shall  allow  to  the  contestant  ten  hundred  and  twenty-seven  (1,027)  votes 
as  having  been  lawfully  cast,  counted,  and  returned  for  him  in  the  parish  of  Saint 
Martin's,  in  the  State  of  Louisiana,  and  to  the  contestee  ten  huudred  and  ninety-five 
(1,095)  votes  as  having  been  lawfully  cast,  counted,  and  returned  for  him  in  said  parish, 
and  that  said  parties  respectively  lawfully  received,  and  are  entitled  to  the  benefit  of, 
the  number  of  votes  aforesaid  on  account  of  said  parish. 

J.  H.  ACKLEN. 
C.  B.  DARRALL. 

If  we  then  take  the  vote  in  the  balance  of  the  district  as  claimed  by 
the  contestant,  and  which  includes  all  the  rejected  polls,  and  add  the 
parish  of  Saint  Martin's,  as  it  was  agreed  it  should  be  counted,  the  vote 
will  be  as  follows : 

Darrall,  as  per  table 12, 621 

Darrall,  Saint  Martin's  (above) 1, 095 

13, 716 

Acklen,  as  per  table 12, 666 

Acklen  (Saint  Martin's) 1,028 

13, 694 

Giving  Darrall  a  majority,  exclusive  of  all  votes  from  IberviUe,  of 22 

From  the  parish  of  Iberville,  we  have  in  the  Record,  first,  the  oflBcial 
count  and  return,  made  by  the  oflBcers  of  election  at  the  polls  of  the 
actual  votes  as  cast  on  the  day  of  election.  This  official  count  and  re- 
turn, as  made  and  sworn  to  by  the  officers  of  election  of  both  parties, 
and  the  compilation  by  the  Kellogg  and  the  ^icholls  returning-boards, 
are  the  same ;  that  is,  Darrall,  2,070 ;  Acklen,  1,078.  Next  we  have  a 
recount  of  the  ballots  found  in  the  boxes  of  this  parish,  which  recount 
was  made  March  6,  1877. 

At  this  recount  all  of  the  ballot-boxes  of  Iberville  Parish,  eleven  in 
number,  were  opened,  and  the  ballots  found  in  them  counted. 

The  recount  of  six  of  these  boxes  does  not  vary  materially  from  the 
official  count.  The  said  six  boxes  were  from  polls  3,  4,  8,  9,  10,  and  11, 
and  the  evidence  of  contestant's  witnesses  shows  that  these  boxes  were 
carefully  sealed  at  the  polls,  and  the  seals  were  found  intact  when  they 
were  recounted. 

The  official  count  and  recount  of  these  six  boxes  was  as  follows: 


Official  ooont. 

Beooout. 

DarraU. 

Acklen. 

DarralL 

Acklen. 

Poll    3 '. 

176 
128 

54 
121 
193 

91 

223 
33 
58 

251 
33 
44 

189 
105 
55 
122 

219 

Poll   4 

34 

Poll   8 

59 

Poll   9 

oan 

Poll  10 

193                  33 

Pollll 

90  '                45 

Total 

763 

fi)2 

7r>4 

640 

ACKLEN   VS.    DARRALL. 


179 


The  official  count  and  recount  of  these  six  boxes  only  shows  a  diii'er- 
ence  of  seven  votes,  which  diflference  is  so  small  that  it  is  not  material, 
and  was  no  doubt  owing  to  the  manner  and  hurry  in  which  the  votes 
were  counted  at  the  polls. 

Darrall's  majority  in  six  polls  (official  count) 121 

Darrall'a  majority  in  six  polls  (recount) 114 

If  it  be  admitted  that  the  recount  of  the  ballots  in  these  six  boxes  is 
the  most  correct,  and  that  vote  be  added  to  the  total  vote  of  each  party 
in  the  district  as  claimed  by  the  contestant,  we  have : 

Darrall,  a«  per  table 13,  71t> 

Darrall,  six  boxes,  Iberville 754 

14, 470 

Acklen,  as  per  table 13,  693 

Acklen,  six  boxes,  Iberville 640 

14,  333 

A  majority  for  Darrall  of 137 

Thus  it  is  shown  that,  taking  all  that  the  contestant  claims  in  the 
balance  of  the  district,  and  taking  his  recount  of  these  six  uncontested 
boxes  in  Iberville,  the  contestee  still  has  a  majority  of  137  votes. 

The  other  five  boxes  in  this  parish,  that  is,  boxes  from  polls  1,  2,  5, 6, 
and  7,  show  a  most  surprising  difference  between  the  official  count  as 
made  at  the  polls  and  the  recount  made  four  months  afterward. 

The  evidence  of  contestant's  witnesses  (which  has  been  quoted)  shows 
that  some  of  these  boxes  were  not  properly  sealed,  and  dthers  were  found 
with  the  seals  broken  at  the  recount. 

The  official  count  and  recount  of  these  five  contested  boxes  was  as 
follows : 


OfiBcial  count. 

Beconnt. 

DarralL 

Acklen. 

DarralL 

Acklen. 

Blank. 

Polll 

218 
394 
207 
301 
187 

44 

115 

63 

156 
58 

65 

M 

32 

135 

73 

Poll2 .'. : 

86             340 
79              158 
99               228 
96                79 

Polls 

PoU6 

Poll?-.. 

Total 

1,307 

436 

499 

38S 

This  recount  wa«  ordered  to  be  made  by  James  Crowell,  parish  judge 
of  Iberville,  on  an  application  made  to  him  by  contestant  in  an  oral  ar- 
gument, as  contestant  says  in  his  brief.  It  was  had  against  the  protest 
of  the  contestee's  representative,  and  the  judge  gave  his  authority  for  so 
ordering  the  recount,  section  123  Kevised  Statutes  of  the  United  States. 
:^either  that  section  or  any  other  law  of  the  United  States  or  of  the  State 
of  Louisiana  authorizes  this  recount. 

The  recount  was  made  by  experts  who  were  appointed  by  the  judge. 
They  agree  as  to  the  number  of  ballots  then  found  in  these  five  boxes 
for  each  party,  but  one  of  the  experts  testifies  distinctly  that  the  seals 
of  some  of  the  boxes  were  found  broken,  and  that  the  tickets  in  the 
boxes  (especially  box  from  poll  2)  did  not  have  the  appearance  of  hav- 
ing been  handled  and  folded  by  the  voters ;  that  the  tickets  having  this 
appearance  were  all  the  black-back  Kepublican  ticket  with  Acklen's 
name  on.    See  testimony  of  Jolley,  page  246 : 

Q.  Did  yon  notice  carefully  the  appearance  of  the  tickets  as  taken  from  those  boxes 

Avlicu  ihr  II'  iiu'.if  \v;»»  iiiiulf  f  — A.  Y("^,  sir. 


180  DIGEST  OF  ELECTION  CASES. 

Q.  Will  yoa  please  state  the  appearance  of  a  portion  of  them  or  any  of  them  ?  Did 
they  look  like  ticket*  that  had  been  regularly  voted  ? — A.  Some  of  them  looked  like — 
■well,  now,  I  will  tell  you  how  they  looked.  Some  of  them  looked  like  they  had  been 
voted  like  an  ordinary  ticket  and  others  looked  like  they  had  not  been  voted — that  is, 
they  did  not  have  the  appearance  of  having  been  doubled  up  like  a  voted  ticket. 

Q.  Were  these  tickets  that  had  the  appearance  of  not  having  beeu  voted  Republican 
tickets  ? — A.  Republican  tickets. 

Q.  Were  they  the  black-back  tickets  ? — A.  Yes,  sir. 

'Q.  Did  any  of  the  Democratic  tickets  have  that  appearance  ? — A.  No,  sir. 

^.  Were  there  more  than  one-third  of  Republican  tickets  in  the  box  ? — A.  Some 
Tjoxes  there  was  three  colors. 

Q.  Did  any  of  the  tickets  have  this  appearance  of  not  having  beeu  voted  except  the 
black-back  tickets  f — A.  No,  sir.  In  some  of  the  boxes  when  we  had  opeued  the  box 
•we  would  turn  up  the  box,  and  in  the  back  you  would  see  tickets  like  ordinary  tickets 
crossways,  faces  ly),  like  they  had  been  thrown  in  there.  Then  vre  would  go  on  further 
and  we  would  find  on  the  back  tickets  with  a  crease  right  through  the  back  where 
they  had  been  folded.  I  don't  know  the  exact  number,  but  they  were  quite  thick, 
because  in  taking  them  from  the  box  I  would  reach  over  and  take  these  tickets  that 
was  folded  in  the  center  bj'  bunches. 

Q.  Was  it  more  than  one  T — A.  Fifteen  or  twenty.  Well,  they  were  put  together, 
the  tickets.  The  tickets  were  taken  from  the  box,  a  number  of  them  together,  and 
the  tickets  were  invariably  the  same  kind,  black-back  Republican  tickets.  In  count- 
ing the  tickets  I  frequently  called  Mr.  John  H.  Shanks's  attention  to  it,  showed  them 
to  him  that  they  were  in  bulk  when  I  took  them  from  the  box.  They  looked  new. 
I  also  called  Mr.  Acklen's  attention  to  it. 

Q.  You  say  these  tickets,  folded  in  bunches  longways  and  crosswise,  coming  out, 
were  invariably  the  black-back  Republican  tickets? — A.  Yes,  sir. 

Q.  There  were  none  other  folded  in  that  manner  and  had  that  appearance  ? — ^A.  No, 
sir ;  not  that  I  remember. 

Q.  Whose  name  ttos  on  these  tickets  having  that  appearance,  for  Congress,  or  was 
any  name  on  them  ? — A.  Some  had  J.  H.  Acklen's  ;  some  did  not  have  anybody's  on. 

Q.  Was  the  Republican  nominee's  name  on  any  of  these  tickets,  to  your  recollec- 
tion ? — A.  No,  sir.  I  would  like  to  state  to  that.  I  would  take  these  tickets  by  the 
back  and  tell  what  ticket  they  were  without  looking  at  the  face. 

Poll  2  was  the  only  one  where  a  string  was  used  (p.  246) : 

I"  Q.  What  boxes,  by  number,  did  you  notice  contained  tickets  which  you  state  were 
folded  in  the  peculiar  way  t — A.  I  don't  remember.  There  was  one  box.  I  can't  tell 
you.  I  don't  know  the  number.  It  was  the  box  that  had  the  string  through  the 
tickets.    The  tickets  were  on  a  string. 

Q.  How  were  these  tickets  put  on  that  string  T — A.  They  had  a  hole  run  through 
the  ticket  and  the  string  through  the  hole. 

Q.  Was  that  string  tied  or  secured  in  any  way  ? — A.  I  cut  it  with  a  knife. 

And  as  to  his  protesting  against  the  recount  he  testifies  as  follows 
(p. 177): 

And  having  been  informed  by  said  Acklen  and  Hon.  James  Crowell  that  they  in- 
tended to  proceed  and  take  the  evidence,  and  deponent,  not  knowing  what  to  do, 
appeared  before  James  Crowell,  the  judge  taking  said  evidence,  and  objected,  on  be- 
half of  said  Darrall,  to  the  taking  of  the  evidence,  on  the  ground  that  sufficient  no- 
tice had  not  been  given,  and  that  the  judge  had  no  authority  to  recount  the  ballots ; 
that  his  objections  were  overruled  by  the  judge,  and  that  the  ballot-boxes,  some  of 
which  had  every  appearance  of  having  been  tampered  with,  were  opened,  and  the 
ballots  recounted. 

This  evidence  of  one  of  the  sworn  experts  appointed  by  the  judge, 
and  of  the  one  who  handled  most  of  the  tickets,  is  sufficient  to  invali- 
date the  whole  proceedings. 

It  is  seen,  therefore,  that  in  no  way  can  the  contestant  be  declared 
entitled  to  the  seat  except  by  giving  him  the  votes  of  these  five  boxes, 
in  accordance  with  the  recount  had  four  months  after  the  election. 

It  is  then  to  be  determined  whether  these  five  boxes  shall  be  counted 
according  to  the  official  count  made  at  the  polls  or  according  to  the  re- 
count. 

We  have  no  hesitation  in  deciding  that  the  official  count  of  these  five 
boxes  is  the  only  one  that  is  entitled  to  be  received.  Could  any  evi- 
dence on  a  question  in  dispute  be  stronger  than  what  has  beeu  cited 


ACKLEN   VS.    DARRALL. 


181 


in  this  case  ?  One  thing  seems  to  be  certain,  and  conceded  by  the  lieu- 
tenant-governor, who  gave  the  contestant  his  certificate,  and  that  is  that 
Mr.  Acklen  is  not  entitled  to  have  the  votes  cast  at  polls  1,  2,  5,  6,  and 
7  counted  for  him,  because  in  making  his  certificate  he  makes  no  count 
of  Iberville  Parish. 

There  is  no  precedent  for  allowing  a  recount  of  this  kind  to  overcome 
and  set  aside  an  oflQcial  count  regularly  made  in  accordance  with  the 
forms  of  law,  and  this  committee,  it  is  presumed,  does  not  intend  to 
depart  from  all  precedents  and  establish  one  so  widely  at  variance  with 
all  decisicus  in  similar  cases  heretofore  made,  and  which  would  certainly 
be  mischievous  in  its  consequences. 

By  no  possibility  can  the  contestant  in  this  case  be  seated,  unless  it 
be  determined  to  reject  the  decisions  of  both  the  Kellogg  and  Nicholls 
returning-boards,  and  to  declare  that  the  Democratic  and  Republican 
officers  who  held  the  election  at  these  five  polls  in  Iberville  Parish  were 
either  notoriously  ignorant  or  wickedly  conspired  to  make  a  false  return; 
for  no  person  w^ho  has  any  knowledge  of  the  manner  of  conducting  an 
election  can  for  one  moment  believe  that  men  of  ordinary  ability  and 
honesty  could  preside  at  and  count  the  votes  of  an  election  and  not  know 
that  bogus  and  blank  tickets  were  voted,  particularly  when  these  bogus 
tickets  amounted  to  several  hundreds,  and  were  a  majority  of  the  votes 
cast. 

In  conclusion,  to  sum  up  this  case,  we  will  take  the  vote  of  the  bal- 
ance of  the  district,  exclusive  of  Saint  Martin's  and  Iberville,  just  as  the 
contestant  claims  it  in  his  certificate  issued  to  him  by  Lieutenant-Gov- 
ernor Wiltz,  and  which  is  certified  to  by  the  secretary  of  state  as  a  cor- 
rect record  of  the  votes  of  the  various  parishes  named,  and  which  is 
also  the  vote  of  those  parishes  as  returned  by  the  Nicholls  returning- 
board.    It  is  as  follows : 


Xames  of  parishes. 

Joseph  H.  Aoklen. 

Totes. 

2,059 

1,692 

1,966 

2,385 

1,455 

661 

228 

91 

69 

2,015 

Yotet. 
1,215 

1,679 

1,393 

1,423 

Xberia ....        ..      ...     .          — 

1,242 

La  Fayette ...                 ..        .  

1,157 
955 

Vermillioii .       --               -   -     -   -   -^     

Calcasiea 

1,291 

Cameron 

225 

2,086 

Ujerville ---      -- ---' 

.. 

12, 621       12, 866 


To  this  vote  we  will  add  the  vote  of  the  parish  of  Saint  Martin's,  as  it 
was  returned  by  the  Nicholls  returning-board  when  they  made  the  re- 
turn for  members  of  Congress,  as  it  is  certified  to  by  the  clerk  of  the 
court  of  that  parish  in  his  certificate,  placed  in  the  record  by  the  con- 


182  DIGEST    OF    ELECTION    CASES. 

testaut,  and  as  it  was  agreed  it  should  be  counted  by  the  parties  them- 
selves before  this  committee.    That  is — 

Darrall,  as  above  table - 12, 621 

Add  Saint  Martin's 1,095 

13,716 

Acklen.  as  above  table 12,666 

Add  Saint  Martin's 1,028 

13, 694 

This,  then,  exclusive  of  Iberville,  and  taking  the  balance  of  the  dis- 
trict just  as  claimed  by  the  contestant,  leaves  Darrall  a  majority  of  22 
votes. 

To  this  vote  of  the  district  we  think  the  law,  the  evidence,  and  the 
equities  of  the  case  demand  there  should  be  added  the  vote  of  Iber- 
ville Parish,  according  to  official  returns  of  the  oflficers  of  election,  ac- 
cording to  the  Kellogg  return ing-board,  and  according  to  the  Nicholls 
returning-board ;  they  all  agree. 

We  then  have— 

Darrall,  as  above 13, 716 

Darrall  (add  Iberville) 2,070 

15,786 

Acklen,  as  above 13,694 

Acklen  (add  Iberville) 1,078 

14,772 

A  majority  for  Darrall  of 1,014 

This  ignores  the  recount  in  Iberville  entirely,  and  we  think  is  just; 
but  the  vote  of  six  out  of  the  eleven  polls  in  Iberville  is  uncontested. 
These  are  polls  3,  4,  8,  9,  10,  and  11 ;  to  these  we  add  poll  1,  which  the 
majority  in  their  report  admit  should  be  counted  according  to  the  offi- 
cial returns.    The  vote  of  these  seven  uncontested  polls  is  as  follows : 

Darrall 941 

Acklen •. 798 

If  this  vote  be  added  to  the  vote  of  the  balance  of  the  district,  exclu- 
sive of  Iberville,  we  have — 

Darrall  (exclusive  Iberville) 13,716 

Dai-rall  (add  7  uncontested  polls) 941 

14, 657 

Acklen  (exclusive  Iberville) 13,694 

Acklen  (add  7  uncontested  polls) ; 798 

14, 492 

a  majority  for  Darrall,  according  to  contestant's  own  figures,  in  the  un- 
contested part  of  the  district,  of  165  votes. 

But  the  majority  having  conceded  that  poll  1  shall  be  counted  ac- 
cording to  the  official  count  because  the  seals  of  the  boxes  were  broken, 
by  which  it  is  indicated  that  the  boxes  had  been  tampered  with,  the 
same  must  apply  to  poll  6,  where  the  seals  were  also  broken. 

Jf  poll  1  is  not  to  be  taken  according  to  the  recount,  none  of  these 
polls  should  be  counted  according  to  that  recount,  for  all  the  boxes  were 
kept  in  the  same  place ;  and  if  the  evidence  is  such  that  the  security  of 
the  boxes  is  not  sufficiently  proven  as  to  one  of  them,  it  clearly  follows 
that  it  is  not  sufficient  as  to  any  of  them. 

If  the  other  four  polls,  Nos.  1,  2,  5,  and  7,  of  Iberville  Parish,  are  not 


ACKLEN    VS.    DARRALL.  183 

counted  according  to  the  official  returns  and  according  to  the  returns 
of  both  of  the  returning-boards,  then  surelj'  they  will  not  be  counted 
according  to  this  recount  made  four  months  after  the  election. 

With  the  evidence  given  we  think  this  cannot  in  justice  and  right  be 
done. 

With  the  admission  of  the  majority  that  poll  1  should  be  counted  ac- 
cording to  the  official  count  and  not  the  recount,  and  with  an  unbroken 
line  of  precedents  that  no  recount  has  ever  been  allowed  to  overcome 
an  official  count  in  any  contest  for  a  seat  in  the  House  of  Representa- 
tiv^^es,  we  claim  that  the  official  count  should  stand,  or  that  these  four 
polls  should  be  rejected  and  not  counted  for  either  party. 

In  either  event  the  right  of  the  contestee  to  the  seat  is  clear. 

In  view,  then,  of  the  foregoing,  we  recommend  the  adoption  of  the  fol- 
lowing : 

Eesolved,  That  Chester  B.  Darrall  was  duly  elected  and  is  entitled 
to  a  seat  in  this  House  as  a  Representative  in  the  Forty-fifth  Congress 
from  the  third  Cougressional  district  of  the  State  of  Louisiana. 

Besolved,  That  Joseph  H.  Acklen  is  not  entitled  to  a  seat  in  this  House 
as  a  Representative  in  the  Forty -fifth  Congress  from  the  third  Congres- 
aional  district  of  the  State  of  Louisiana. 

H.  PRICE. 


Mr.  Thornbuegh,  on  behalf  of  a  minority  of  the  Committee  of  Elections, 
submitted  the  following 

REPORT: 

A  minority  of  the  Committee  of  Elections,  to  tchom  teas  referred  the  con- 
tested-election case  of  Joseph  H.  Acklen  vs.  Chester  B.  Darrall^  from  the 
third  district  of  Louisiana,  submit  their  views  as  follows : 

There  have  been  two  canvasses  of  the  votes  for  this  district.  The 
first  under  the  Packard  government,  which  gave  Darrall  a  majority  of 
2,093  votes,  and  again  under  the  Nicholls  government,  which  gave  Dar- 
rall also  a  majority,  but  reduced  to  1,094  votes.  The  canvass  of  the 
Nicholls  government  is  based  upon  a  count  of  all  the  parishes  and  polls 
as  returned  ;  hence  we  take  this  canvass  as  the  best  basis  for  the  inves- 
tigation of  the  case. 

The  only  difference  of  opinion  existing  in  the  committee  is  limited  to 
poll  Ko.  17,  La  Fourche  Parish,  and  six  precincts  in  Iberville  Parish. 
And  it  is  admitted  by  the  entire  committee  that  all  the  remaining  par- 
ishes and  voting-precincts  shall  be  counted  as  canvassed  by  the  Kicholls 
returuing-board.     And  first  as  to  precinct  No.  17,  La  Fourche  Parish. 

It  is  shown  by  the  evidence  of  M.  W.  Billier  (Record,  p.  132)  that  the 
place  for  holding  the  election  was  changed  from  R.  H.  Allen's  ware- 
house, where  notice  had  been  given  the  election  would  be  held,  to  the 
negro  quarters  on  the  same  plantation,  which  was  about  a  mile  distant 
from  the  warehouse.  This  change  was  made  without  legal  authority, 
and  without  giving  notice  of  the  same.  This  change  lost  to  Acklen 
some  15  to  18  votes,  because,  as  the  witness  Ledet  states  it,  the  Demo- 
cratic voters  were  '^  disgusted"  at  the  change  and  would  not  go  to  the 
negro  quarters  to  vote.  We  quote  his  testimony  on  this  question,  from 
page  75  of  the  record  : 


184  DIGEST  OF  ELECTION  CASES. 

Q.  What  number  of  votes  were  lost  to  J.  H.  Acklen  by  the  failure  to  place  poll  No. 
17  where  it  was  ordered  to  be  held,  at  the  Allen  warehouse,  and  which  was  really 
lield  back  in  some  negro  quarters  about  three  miles  from  the  road  ? — A.  Well,  the 
commissioner  at  that  jjoll  had  instructions  to  hold  the  election  on  the  road-side  at  the 
warehouse,  and  he  disobeyed  orders  and  went  back  there.  He  told  me  himself  after- 
ward that  there  were  about  fifteen  or  eighteen  Democrats  that  would  not  vote  on 
account  of  the  poll  being  there,  because  Mr.  R.  H.  Allen,  who  was  the  owner  of  the 
place,  protested  against  holding  the  election  there  and  disgusted  those  men  from  vot- 
ing there.  That  information  I  hold  from  the  commissioner  himself.  I  know  myself 
that  on  that  place  there  were  at  least  fifteen  or  eighteen  white  men  working  there 
nearly  all  the  year  round. 

Darrall  received  86  votes  at  this  precinct,  all  the  votes  that  were 
polled.  By  the  evidence,  Acklen  would  have  received  15  to  18  votes  if 
the  election  had  been  held  at  the  warehouse.  This  would  have  left 
Darrall  more  than  60  majority  at  this  precinct.  But,  as  the  change  of 
place  of  voting  was  without  legal  authority,  and  done,  perhaps,  to  seek 
an  advantage  for  Darrall  and  others  on  the  Kepublican  ticket,  we  agree 
Adth  the  majority  to, throw  out  this  entire  poll,  thereby  depriving  Dar- 
rall of  86  votes,  when  a  full  vote  would  have  left  him  more  than  60 
majority ;  and  we  deduct  from  Darrall's  majority  86  votes. 

This  leaves  us  the  parish  of  Iberville. 

It  is  agreed  by  the  committee,  both  the  majority  and  minority,  that 
polls  Nos.  1,  8,  9,  10,  and  11  shall  stand  as  counted  by  the  Nicholls  re- 
turning-board. 

These  polls  gave  Darrall 677 

These  polls  gave  Acklen y|30 

This  narrows  the  discussion  to  polls  Nos.  2,  3,  4,  5,  6,  and  7.  The 
testimony  is  quoted  in  the  majority  report,  and  also  in  the  report  sub- 
mitted by  Mr.  Price,  of  the  committee,  and  is  therefore  not  repeated 
here.  It  establishes,  we  think,  the  following  facts  in  regard  to  each  and 
aU  of  these  last-named  polls : 

That  Wharton,  a  Republican  candidate  for  the  State  senate,  and 
others,  conspired  to  defeat  Darrall  by  the  use  of  spurious  Republican 
tickets,  intending  to  procure  such  of  his  friends  as  he  could  control  to 
vote  and  distribute  on  election-day  these  spurious  tickets,  and  to  pro- 
cure thereby  other  Republican  voters  to  vote  said  spurious  tickets  with- 
out their  knowledge.  And  here  we  will  describe  this  ticket  as  shown 
by  the  evidence.  It  is  headed,  "  Republican  ticket,  Iberville  Parish." 
Then  follow  the  names  of  48  persons,  with  the  offices  for  which  they  were 
candidates,  giving  in  each  case  the  name  of  the  Republican  candidate 
for  that  office  (see  Record,  pp.  72  and  73).  This  ticket  was  about  nine 
inches  long,  and  to  distinguish  it  from  other  tickets  was  printed  on 
paper  with  a  glazed  back,  and  nearly  black  in  color.  The  spurious 
tickets  were  exactly  like  those  just  described,  except  that  Acklen^s 
name  was  inserted  for  Darrall's,  or  the  whole  line,  "  For  member  of 
Congress,  third  district,  Chester  B.  Darrall,"  left  out,  making  it  a  blank 
as  to  member  of  Congress. 

The  contestant  claims  that  these  spurious  tickets  were  voted  at  these 
polls.  In  other  words,  that  this  trick  and  fraud  was  successful,  and 
that  the  officers  of  election,  not  knowing  such  tickets  were  being  voted, 
did  not  sufficiently  scrutinize  the  tickets  to  detect  the  fact  that  they 
were  not  what  they  purported  to  be,  to  wit,  straight  Republican  tickets, 
and  that  they  so  counted  them,  giving  Darrall  the  benefit  of  all  the 
spurious  tickets.  We  think  that  the  question  whether  or  not  the  tickets 
were  sufficiently  scrutinized  to  detect  this  fraud,  if  it  was  successfully 
consummated,  by  the  officers  of  the  election  when  they  made  the  official 
count  is  conflicting  and  leaves  th«'  niattt^r  in  donljt.     Here  we  might 


ACKtEN   VS.    DARK  ALL.  185 

possibly  stop  aud  assume  that  the  official  count  must  stand  because 
the  evidence  only  casts  a  grave  doubt  as  to  its  correctness ;  but  as  we 
think  there  is  such  doubt  and  conflict  of  evidence  concerning  the  cor- 
rectness of  the  official  count  by  the  officers  of  the  election,  we  have 
determined  to  give  the  contestant,  Mr.  Acklen,  the  benefit  of  the  doubt 
and  the  conflict  in  the  testimony,  and  by  so  doing  it  becomes  our  duty 
to  carefullj'  examine  all  the  testimony,  and  see  whether  from  it  we  can 
find  out  what  the  true  vote  at  these  polls  was.  The  contestant  reliea 
on  what  is  called  a  recount  of  the  ballots,  a  count  made  of  sucl*  bal- 
lots as  were  found  in  the  boxes,  in  the  following  month  of  March,  four 
mouths  after  the  election,  to  establish  both  the  facts  that  the  first  count 
was  incorrect,  and,  second,  that  the  last  count  shows  the  true  vote  at 
these  polls  in  dispute.  We  insist  that  this  count  (the  last  or  recount) 
cannot  be  relied  on  for  either  purpose,  and  that  it  is  far  more  unreliable 
and  uncertain  than  the  official  or  first  count,  and  that  it  is  utterly  in- 
credible that  it  can  show  the  true  vote.  And  here  we  will  cite  some  <A 
the  testimony  bearing  on  this  point. 

1st.  Some  of  the  boxes  were  not  delivered  by  the  officers  of  the  elec- 
tion to  the  clerk  of  the  court,  but  were  for  a  time  out  of  his  custody. 

The  law  is  as  follows : 

LAW  OF  LOUISIANA   FOR   PRESERVATION   OF   BALLOTS. 

Sec.  13.  Be  it  furthet'  enacted,  tfc,  That  it  shall  be  the  duty  of  the  commissiouers  erf" 
election  at  each  poll  or  voting-place  to  keep  a  list  of  the  names  of  the  persons  voting 
at  such  poll  or  votiug-place,  which  list  shall  be  numbered  from  one  to  the  end;  and 
said  list  of  voters,  with  their  names  and  numbers  as  aforesaid,  shall  be  signed  and 
sworn  to  as  correct  by  the  commissioners,  immediately  on  closing  of  the  polls,  and 
before  leaving  the  place,  and  before  opening  the  box.  If  no  judge  or  justice  of  the 
peace,  or  other  person  authorized  to  administer  such  oath,  be  present  to  do  so,  it  may 
be  administered  by  any  voter.  The  votes  shall  be  counted  by  the  commissioners  at 
each  voting-place  immediately  after  closing  the  election  and  without  moving  the  boxes 
from  the  place  where  the  vot«8  were  received,  and  the  counting  must  be  done  in  the 
presence  of  any  by-stander  or  citizen  who  may  be  present.  Tally-lists  shall  be  kept 
of  the  count,  and  after  the  count  the  ballots  counted  shall  be  put  back  into  the  box 
and  preserved  until  after  the  next  term  of  the  criminal  or  district  court,  as  the  case 
may  be ;  and  in  the  parishes,  except  Orleans,  the  commissioners  of  election,  or  any 
one  of  them  selected  for  that  purpose,  shall  carry  the  box,  and  deliver  it  to  the  clerk 
of  the  district  court,  who  shall  preserve  the  same  as  above  required ;  and  in  the  parish 
of  Orleans  the  b©x  shall  be  delivered  to  the  clerk  of  the  first  district  court  for  the 
parish  of  Orleans,  and  be  kept  by  him  as  above  directed.     (Act  98,  1872,  p.  174.) 

That  this  was  not  complied  with  is  shown  by  the  following  evidence : 
Crowell,  clerk  of  court  when  election  was  held  (pp.  59,  60) : 

Q.  After  the  election  did  you  receive  all  the  boxes  according  to  law?  Were  they 
delivered  by  the  commissioners? — A.  I  received  the  chief  part  of  them  from  the  com- 
missioners. I  received  two  or  three  from  the  clerk  of  the  registrar  here,  I  believe. 
By  mistake  they  delivered  them  at  his  oflSce  instead  of  here. 

Here  it  will  be  observed  that  some  of  these  boxes,  but  which  of  them 
we  are  not  able  to  ascertain  from  the  evidence,  were  in  the  hands  of 
unauthorized  persons.  As  to  how  long  they  were  thus  out  of  the  proper 
custody,  and  what  occurred  to  them  while  thus  out  of  the  proper  cus- 
tody, the  evidence  is  silent. 

2d.  We  are  satisfied  from  the  evidence  that  these  boxes  did  not  con- 
tain the  ballots  that  were  cast  at  the  polls  on  the  day  of  the  election, 
but  that  they  had  been  tampered  with,  and  other  ballots  substituted. 
While  we  admit  that  the  proof  is  clearer  and  more  certain  as  to  the  ex- 
ternal evidences  of  the  breaking  of  the  seals  aud  tearing  of  paper  as  to 
some  of  the  boxes  than  as  to  others,  yet  we  are  satisfied  that  the  evi- 
dence taken  togetbor.  inplnding  the  contents  of  the  boxes,  shows  con- 


186  DIGEST  OF  ELECTION  CASES. 

clusively  that  this  recount  is  wholly  unreliable  and  worthless  for  any 
purpose. 

3d.  It  will  be  seen  by  the  statute  above  quoted  that,  after  the  oflficial 
count,  "the  ballots  counted  shall  be  put  back  into  the  box  and  be  pre- 
served until  after  the  next  term  of  the  criminal  or  district  court,  as  the 
case  may  be." 

The  annexed  certificate  from  the  clerk  of  the  district  court  shows  that 
the  firsl  term  of  court  was  held  January  1,  and  the  said  recount  was 
not  Lad  till  March.  After  that  the  clerk  is  not  responsible  for  safe- 
keeping of  either  boxes  or  ballots,  and  no  law  requires  that  the  ballots 
shall  be  longer  preserved,  and  it  is  no  offense  to  tamper  with  or  change 
the  ballots  aft^r  that  time. 

Certificate  of  clet-k.— (Page  178.) 

State  op  Louisiana, 

Parish  of  I  berville : 

Clerk's  Office,  Fifth  Judicial  District  Court. 

I,  Charles  H.  Gordon,  clerk  of  the  fifth  judicial  district  court  of  Louisiana,  in  and 
for  the  parish  of  Iberville,  do  hereby  certify  that  the  first  term  of  said  district  court 
for  the  present  year  was  held  in  Iberville  Parish  on  Tuesday,  the  2d  day  of  January, 
A.  D.  1877,  as  tlie  first  Monday  was  the  1st  and  a  dies  non,  his  honor  James  L.  Cole 
presiding. 

Witness  my  band  officially  and  the  impress  of  the  seal  of  said  court  at  the  parish 
of  Iberville  this  8th  day  of  May,  A.  D.  1877. 

[seal.]  C.  H.  GORDON,  Clerk. 

4th.  The  testimony  shows  that  two  clerks  and  their  deputies  were  in 
possession  of  the  boxes  after  they  were  deposited  in  the  clerk's  office,  a 
public  place  easy  of  access. 

5th.  It  is  utterly  impossible  that  there  could  have  been  over  one  thou- 
sand of  these  spurious  votes  cast  for  Acklen  and  counted  for  Darrall 
without  it  having  been  detected  by  the  Eepublican  and  Democratic  offi- 
cers of  election.  The  officers  of  election  were  divided  between  the  two 
parties,  and  were  selected  by  the  chairmen  of  the  committees  of  the 
two  parties  respectively.  The  proof  shows  that  these  officers  were  hon- 
est and  careful  men,  and  it  is  absolutely  incredible  that  such  mistakes 
should  have  been  made  as  is  claimed  by  contestant ;  especially  is  this 
so  since  it  was  known  at  some  of  these  polls  that  these  spurious  tickets 
had  been  brought  into  the  parish. 

/  6th.  As  to  the  condition  the  boxes  were  found  in,  and  the  excuse 
given  for  it,  we  submit  the  following  extracts  from  the  testimony : 

Landry,  deputy  clerk,  Democrat  (p.  62): 

Q.  You  see  the  boxes  every  day  or  two  ? — A.  Yes,  sir. 

Q.  If  they  had  been  tampered  with  overnight  or  at  anytime,  would  that  fact  have 
be«n  noticed  by  you,  do  you  think? — A.  Yes,  sir;  so  far  as  I  know  the  boxes  have 
never  been  tampered  with,  so  far  as  taking  any  papers  out  or  adding  any  papers  to 
them,  or  anything  of  thrit  kind. 

Q.  Is  this  court-liouse  not  very  damp  ? — A.  Yes,  sir ;  I  say  that  the  dampness  of  the 
office  would  atfect  the  seals  of  the  boxes,  if  they  are  sealed  with  mucilage.  Now,  I 
do  not  know  whether  it  could  affect  the  sealing-wax,  but  if  the  dampness  does  affect 
the  sealing-wax,  they  would  be  affected  in  this  office,  because  this  office  is  very  damp. 

Q.  Have  not  those  boxes  been  removed  several  times? — A,  They  were  moved  twice 
to  my  knowledge. 

Q.  Is  it  not  possible  that  some  of  those  papers  on  the  boxes  and  some  of  the  wax 
might  have  been  loosened  by  the  moving  of  those  boxes? — A.  Yes,  sir,  on  account  of 
the  dampness,  which  might  have  unglued  some  of  the  paper  on  them.  In  moving 
them  some  of  the  papers  might  have  dropped  off',  for  all  I  know.  You  will  find  even 
now  that  some  of  them  are  very  loose. 

Cross-examined  by  Mr.  Jolley  : 
Q.  Those  boxes  that  have  the  papers  broken  on  thom  were  sealed  with  wax  ? — A. 


ACKLEN    VS.    DARRALL. 


187 


Well.  I  could  uot  swear  to  that  fact.,  I  could  ouly  s.vear  to  theiu-^^  ^  f^^  *^®'"  ^**^» 
that  they  are  sealed  with  wax.  I  never  examined  the  boxes  to  see  ^"^*  they  were 
sealed  with  when  they  first  came  in.  , 

Q.  Did  you  ever  examine  those  boxes  before  to-day  as  carefully  as  ^^"  have  now 
since  you  have  been  here  as  deputy  clerk  ? — A.  Well,  I  cannot  say  that  *.  ^^^'^'^^"^ 
all  of  them  carefully.  I  examined  some  of  them  the  other  day.  The  clert.  'ii  order 
to  make  more  room,  moved  them  the  other  day  and  corded  them  as  you  see  the?*.'^'^®^®» 
and  I  remarked  that  some  of  them  seemed  to  be  loose.  I  did  uot  pay  attention  *.'^icn 
boxes  jiarticularly  were  loose  or  not,  but  Inoticed  that  some  of  the  labels  were  em^^^^y 
unglned.  i 

Hon.  J.  C.  Carville  says  (p.  197  of  Record): 

We. just  simjdy  put  a  i)iece  of  paper  with  mucilage  over  the  top  where  they  put  th 
ballot  in,  and  then  over  the  key-hole  another  piece  of  paper  with  mucilage;  did  not 
seal  it  or  put  the  name  on  it. 

This  is  in  regard  to  poll  7. 

Poll  5  was  sealed  with  wax  on  top,  but  nothing  was  placed  over  the 
key-hole. 
Talbott,  Democratic  commissioner,  poll  5  (p.  47) : 

Q.  After  you  finished  the  count  what  did  you  do  with  the  tickets  ? — A.  We  placed 
them  in  the  box  and  sealed  it.     I  do  not  think  that  the  opening  of  the  lock  was  sealed. 

7th.  As  to  the  impossibility  of  such  mistakes  being  made  as  is  claimed 
by  contestant,  we  quote  the  following  from  the  testimony  of  Bazil  Craig 
(p.  273),  a  commissioner  at  poll  2 : 

Q.  Have  you  heard  of  the  recount  of  the  vote  for  Congressman,  made  at  the  request 
of  Mr.  Acklen,  at  your  poll  ? — A.  Yes,  sir;  I  have  heard  of  it. 

Q.  In  counting  these  tickets,  are  you  sure  Mr.  Acklen's  name  was  not  on  any  of  the 
Republican  tickets? — A.  Yes,  sir;  I  am  sure  of  that ;  his  name  was  not  on. 

Q.  Mr.  Crai^,  it  is  claimed  in  this  recount  that  instead  of  394  votes  Mr.  Darrall 
received  only  m  votes  at  your  poll.  Could  such  a  mistake  have  been  possible  ? — A.  It 
is  impossible,  sir,  from  the  very  reason  that  the  tickets  were  counted  too  carefnl  by 
R.  Hebert,  who  was  standing  just  behind  me.  Him  and  I  looked  over  the  tickets 
very  carefully,  and  there  could  not  have  been  possibly  such  a  mistake. 

Q.  Could  it  have  been  possible  that  instead  of  II.t  votes  Mr.  Acklen  had  340  votes 
in  your  box  ?  Could  such  a  mistake  have  been  possible  f — A.  It  is  impossible,  sir,  to 
my  eye-hight. 

Q.  Is  your  eye-sight  good  ? — A.  Perfectly  good,  sir. 

Q.  Could  it  have  been  possible,  Mr.  Craig,  that  there  was  90  of  those  votes  that  had 
no  name  on  for  Congress  ? — A.  No,  sir;  it  could  not  have  been  possible. 

Q.  Mr.  Craig,  how  would  you  account,  then,  for  this  diiference  between  the  vote  as 
you  counted  it,  which  was  394  for  Darrall  and  115  for  Acklen,  and  the  vote  as  claimed 
in  tiiis  recount?  How  would  you  explain  that? — A.  It  would  be  impossible  for  me 
to  say  Mr.  Acklen  was  elected  there  by  the  Republican  votes,  unless  we  all  were 
blind". 

The  following  will  show  how  carefully  the  official  count  was  made  ab 
poll  Ko.  6,  and  the  impossibility  of  making  such  a  mistake  as  the  re- 
count would  indicate : 

Q.  Did  you  distribute  any  of  the  black -tickets  ? — A.  No,  sir. 

(^.  Who  assisted  you  ?  Was  one  of  the  commissioners  scrutinizing  these  tickets 
with  you — examining  them  with  you  ? — A.  There  was  no  commissioner  examining 
the  tickets  with  me;  but  one  supervisor. 

Q.  Which  one? — A.  David  Johnson. 

Q.  Were  the  tickets  and  the  names  on  the  tickets  scrutinized  by  any  other  officers 
except  yourself?— A.  No,  sir;  not  that  I  know  of. 

Q.  And  you  can  positively  swear  that  you  examined  the  names  on  every  ticket? — 
A.  Yes,  sir ;  I  took  them  out  one  by  one. 

Q.  Were  there  any  Republican  tickets  scratched  in  the  box  ? — A.  Yes,  sir. 

Q.  Did  yon  sign  and  swear  to  the  returns  as  correct  ? — A.  Yes,  sir. 

Q.  Wera  they  correct  ? — A.  Yes,  sir. 

Q.  Was  Mr.  Darrall  supported  by  all  the  Republicans  of  your  ward? — A.  Every  one 
of  tliem. 

Q.  Did  the  Wharton  element  and  the  Wakefield  element  all  support  Darrall  in  that 
ward  ? — A.  Yes,  sir. 

Q.  How  would  you  account  for  the  fact,  as  claimed  in  this  recount  of  votes,  that  in- 


188 

,  DIGEST    OF    ELECTION    CASES. 

i. 

stead  of  Darrall  ha^. 

or  how  would  yo^  ing  a  majority  of  the  votes  at  your  poll,  Mr.  Ackleu  had  a  majority  ; 

out.  m  explain  that! — A.  Well,  I  could  uot  exactly  tell  how  that  come 

Q.  Could  tb 
because  we  .nat  have  occurred  by  any  mistake  that  you  made? — A.  Not  at  my  poU, 

Q.  Werji'Were  very  careful  in  counting  these  votes, 
careful  i^'J  you  careful  in  noticing  the  names  on  every  ticket? — A.  Yes,  sir;  I  was  very 

-jj  ,  '"n  noticing  the  names. 

«<^^LL  Ko.  1. — E.  A.  Verrett,  a  supervisor  at  this  poll,  testifies  that  he 
wwrefully  observed  every  ticket  and  the  names  on  it,"  and  that  he  does 
ovthink  it  possible  to  have  made  a  mistake. 

/  Yet  it  is  claimed  by  contestant  that  the  election  officers  made  a  mis- 

Jcake  of  79  in  favor  of  Darrall,  giving  him  that  number  too  many,  and  a 

^mistake  of  116  against  Acklen,  giving  him  that  many  too  few.     In  other 

(    words,  that  by  the  official  count  Darrall  had  218,  Acklen  44 ;  and  by 

the  recount,  Darrall  had  139,  Acklen  150. 

This  evidence  and  the  fact  that  seals  of  the  boxes  were  found  broken 
when  the  recount  took  place  were  sufficient  to  induce  the  majority  of 
the  committee  to  reject  the  recount  of  poll  'No.  1.  This  is  an  admission 
that  the  ballot-box  of  this  poll  has  so  much  evidence  pointing  to  the 
fact  that  it  had  been  tampered  with  before  the  recount  that  the  majority 
could  not  accept  that  recount.  This,  in  connection  with  the  evidence 
in  regard  to  the  other  disputed  polls,  a  jiart  of  which  we  have  quoted 
above,  and  the  great  discrepancies  between  the  two  counts,  amounting 
to  over  one  thousand  votes,  is  conclusive  to  our  minds  that  the  recount 
should  not  be  accepted  as  to  any  of  these  boxes.  When  it  is  conceded 
that  one  has  been  tampered  with  a  strong  presumption  is  raised  as 
against  the  others. 

The  majority  of  the  committee  also  refuse  to  accept  the  recount  of 
poll  No.  7. 

At  this  poll  the  official  vote  stood:  Darrall,  187;  Acklen,  oS.  By  the 
recount  it  stood:  Darrall,  79;  Acklen,  96;  showing  large  discrepancies 
between  the  two  counts.  But  because  the  evidence  shows  that  the  box 
was  not  sealed  according  to  law,  and  the  officers  of  the  elections  did  not 
write  their  names  on  the  paper  placed  on  the  box ;  that  it  was  only 
fastened  by  strips  of  paper  stuck  on  with  mucilage,  which  were  found  in 
bad  condition  (tried  to  be  explained  in  the  evidence  by  saying  that  the . 
office  was  damp,  as  above  quoted),  the  majority  of  the  committee  de- 
clined to  adopt  the  recount,  and  accepted  the  original  count.  Bat  this 
being  conceded  as  to  this  box,  it  is  a  virtual  concession  of  the  unrelia- 
bility of  the  recount  as  to  all  of  these  disputed  polls. 

We  have  in  vain  looked  for  a  single  precedent  for  overcoming  an 
official  count  by  a  recount,  and  seating  a  contestant  by  reason  of  such 
recount.    The  rule  of  law  in  matters  of  this  kind  is  well  settled. 

It  is  stated  by  McOrary  as  follows  (McCrary  on  Elections,  section 
277) : 

Where,  as  is  the  case  in  several  of  the  States,  the  statute  provides  a  mode  of  pre- 
serving the  identical  ballot  cast  at  an  election  for  the  purpose  of  being  used  as  evi- 
dence in  case  of  contest,  such  statute,  and  particularly  those  provisions  which  provide 
for  the  safe-keeping  of  such  ballots,  must  be  followed  with  great  care.  The  danger 
that,  after  the  count  is  made  (especially  if  the  vote  is  very  close),  the  ballots  may  be 
tampered  with,  is  so  great  that  no  opportunity  for  such  tampering  can  be  permitted. 
Such  ballots,  in  order  to  be  received  in  evidence,  must  have  remained  in  the  custody 
of  the  proper  officer  of  the  law  from  the  time  of  the  original  count  until  they  are  pro- 
duced before  the  proper  couptor  officer,  and  if  it  appear  they  have  been  handled  by 
unauthorized  persons,  or  that  they  have  been  left  in  an  exposed  and  improper  place, 
they  cannot  be  ottered  to  overcome  the  official  count. 

Applying  this  rule  to  the  evidence  in  this  case,  it  is  clear  that  this 
recount  cannot  be  accepted  as  showing  the  vote  of  these  polls. 

But  if  the  recount  wern  accurate,  and  it  was  clearly  proven  that  the 


ACKLEN    VS.    DARRALL.  189 

ballots  were  intact,  the  House  cannot,  in  our  judgment,  properly  give 
Mr.  Acklen  the  benefit  of  it,  because  it  is  clear,  beyond  dispute,  that 
his  claim  rests  upon  the  fact  that  fraudulent  tickets  were,  against  the 
knowledge  and  will  of  the  voters,  clandestinely  procured  to  be  voted, 
and  thereby  a  fraud  was  perpetrated  upon  the  voters.  He,  therefore, 
is  claiming  his  seat  upon  a  fraud,  which  the  House  cannot  sanction. 

;Xow,  in  conclusion,  we  say  that,  inasmuch  as  a  doubt  has  been  cast 
upon  the  accuracy  of  the  official  count  of  these  polls  in  Iberville  Parish, 
viz,  2,  3, 4,  5,  6,  and  7,  and  as  the  recount  cannot  be  accepted  as  indicat- 
ing the  true  vote  of  these  polls,  it  is  our  judgment  that  the  proper  dis- 
position of  them  is  to  reject  them  altogether,  because  there  is  no  evidence 
upon  which  we  can  implicitly  rely  as  to  what  the  true  vote  was. 

We  agree  with  the  majority  that  poll  17,  La  Fourche  Parish,  shall  be 
rejected. 

This  makes  the  result  as  follows  : 

The  parishes  other  than  Iberville — 

Dairall 13,716 

Deduct  poll  17,  La  Fourche  Parish 86 

13,630 

Add  his  vote  in  polls  Nos.  1,  8,  9,  10,  11,  Iberville 677 

Darrall's  total  vote 14,307 

In  the  parishes  other  than  Iberville — 

Acklen 13,693 

Add  his  vote  in  polls  No.  1,8,  9,  10,  11,  Iberville 430 

Acklen's  total  vote 14, 123 

Darrall's  majority 184 

It  will  be  seen  that  we  reject  both  counts  at  poll  No.  7,  which  the  ma- 
jority are  willing  to  count  as  it  was  counted  officially;  but,  as  it  appears 
from  the  evidence  that  the  fraudulent  tickets  were  distributed  at  this 
poll,  and  that  the  official  count  was  loosely  and  carelessly  made  (see  evi- 
dence of  Le  Blanc,  p.  58),  we  think  it  safer  to  reject  that  poll,  as  there 
might  have  been  mistakes  made  in  the  manner  in  which  the  count  was 
conducted.  We  consider  that  these  fraudulent  tickets  were  taken  to 
poll  No.  1,  but  it  will  be  found  on  examining  the  evidence  that  David- 
son gave  the  fraudulent  tickets  to  Verrett  and  called  his  attention  to 
the  fact  of  the  fraud.  It  is  also  shown  that  Verrett  and  the  other  offi- 
cers of  the  election,  knowing  of  their  existence,  made  a  careful  canvass 
of  each  ticket  voted. 

The  carefulness  of  this  count  is  shown  by  the  fact  that  while  Packard 
received  298  votes,  which  were  counted  for  him,  Darrall,  contestee,  only 
received  218  votes.  There  were  only  a  few  scratched  tickets,  thus  show- 
ing that  the  tickets  must  have  been  carefully  examined  by  the  officers 
in  making  the  count.     (See  Dubuclet's  evidence,  pp.  265-'6.) 

In  view,  then,  of  the  foregoing,  we  recommend  the  adoption  of  the 
following : 

Resolved.,  That  Chester  B.  Darrall  was  duly  elected  and  is  entitled  to 
a  seat  in  this  House  as  a  Representative  in  the  Forty-fifth  Congress 
from  the  third  Congressional  district  of  the  State  of  Louisiana. 

Resolved.,  That  Joseph  H.  Acklen  is  not  entitled  to  a  seat  in  this  House 
as  a  Rei>resentative  in  the  Forty-fifth  Congress  from  the  third  Congres- 
sional district  of  the  State  of  Louisiana. 

J.  M.  THORNBURGH. 
JOHN  T.  WAIT. 
FRANK  HISCOCK. 


190  DIGEST    OF    ELECTION    CASES. 


BENJAMIN  DEAN  vs-  WALBRIDGE  A.  FIEiyO. 

Third  Congressional  Pistrict  of  Massachusetts. 

This  district  lies  wholly  within  the  city  of  Boston,  and  the  contest  arises  on  accoont 
of  the  alleged  errors  of  the  ward  officers  of  the  city  in  making  the  count,  which 
errors  a  committee  of  aldermen  soaght  to  correct  in  pursuance  of  an  act  of  the 
legislature  of  Massachusetts. 

Held,  That  this  act  could  not  have  been  intended  to  apply  lo  the  election  of  Repre- 
sentatives in  Congress. 

The  words  "  fourth  district,"  after  the  words  "Representative  in  Congress,"  do  not  con- 
stitute a  part  of  the  legal  designation  of  the  office ;  and  ballots  cast  in  the  third 
district,  reading  "For  Representative  in  Congress,  fourtli  district,  Walbridge  A. 
Field,  of  Boston,"  must  be  counted  for  contestee. 

Laws  relating  to  the  counting  of  votes  must  be  strictly  construed  and  rigidly  enforced. 
After  the  count  of  votes  for  Representative  in  Congress  by  United  States  super- 
visors, who  remain  with  the  ballot-boxes  until  the  count  is  completed  and  the  cer- 
tificate made  out,  it  is  not  competent  for  any  State  to  provide  another  board  of 
canvassers  who  may  take  possession  of  the  ballot-boxes,  exclude  the  Federal  offi- 
cers, and  secretly  count  the  votes  and  declare  a  different  result. 

The  House  is  not  precluded  by  the  face  of  the  returns,  but  may  proceed  to  inquire 
"into  the  validity  of  the  election  of  any  one  of  its  members,  and  in  such  inquiry 
has  all  the  power  of  a  court  in  cases  of  quo  warranto. 

The  House  adopted  the  majority  report  March  28,  1878. 


I^BRUARY  21, 1878. — Mr.  Springer,  from  the  Committee  of  Elections, 
submitted  the  following 

REPORT: 

The  Committee  of  Elections^  to  whom  was  referred  the  contested-election 
case  from  the  third  Congressional  district  of  Massachusetts  y  having  had 
the  same  under  consideration,  submit  the  following  report: 

The  third  Congressional  district  of  Massachusetts  is  composed  of 
wards  13,  14,  15,  16,  17,  18,  19,  20,  21,  and  24  of  the  city  of  Boston,  and 
is  the  only  district  in  Massachusetts  wholly  comprised  within  the  limits 
of  a  city.  The  election  for  Kepresentatives  in  Congress  took  place  in 
that  State  on  the  7th  day  of  November,  1876,  at  which  time  Presidential 
electors  and  State  officers  were  elected.  One  polling- place  was  opened 
in  each  ward  of  the  city  of  Boston,  and  the  election  was  held  in  each 
ward  by  a  warden,  clerk,  three  inspectors  appointed  by  the  mayor,  and 
three  inspectors  elected  by  the  qualified  voters  of  the  ward.  The  warden 
presides  at  the  election,  and  it  is  the  duty  of  the  warden  and  inspectors, 
with  the  assistance  of  the  clerk,  to  receive,  sort,  and  count  all  the  votes 
cast.  The  ballots  are  taken  out  of  the  boxes  and  counted  from  time  to 
time  during  the  day,  and  the  ward  officers  are  thus  enabled  to  finish  the 
counting  soon  after  the  closing  of  the  polls,  and  the  result  must  be  pub- 
licly decbired  in  open  ward  meeting  before  adjonrnment. 

The  result  is  then  transmitted,  with  all  the  ballots  and  papers,  to  the 


DEAN    VS.    FIELD.  191 

city  clerk  of  the  city  of  Boston.  These  provisions  of  the  law  were 
strictly  complied  with,  and  there  is  no  allegation  of  fraud,  illegality,  or 
irregularity  of  proceedings  in  conducting  the  election  up  to  and  includ- 
ing the  canvass  of  the  votes  and  transmission  of  the  result  by  the  ward 
oflBcers.  But  it  is  alleged  that  the  ward  officers  committed  errors  in 
making  the  count,  and  on  account  of  these  alleged  errors  the  contest 
arises  in  this  case. 

There  were  three  counts  of  the  vot«s  cast  for  Kepresentative  in  Con- 
gress from  the  district  in  question.  The  first  count  was  that  made  by 
the  ward  officers ;  the  second  was  that  made  by  the  United  States  super- 
visors of  election,  ai)pointed  in  pursuance  of  sections  2011  and  2012  of 
the  Revised  Statutes  of  the  United  States ;  and  the  third  count  was 
made  by  a  committee  of  the  board  of  aldermen  of  the  city  of  Boston. 

We  have  already  j^ointed  out  the  manner  in  which  the  first  count  wa» 
made.  The  second  count  was  made  by  two  supervisors  of  election 
appointed  for  each  ward  by  the  circuit  court  of  the  United  States  for 
the  circuit  in  which  the  city  of  Boston  is  situated.  These  supervisors 
were  appointed  upon  the  recommendation  of  the  respective  candidates 
for  Congress,  or  their  friends,  and  were  "of  different  political  parties,*^ 
as  the  law  of  Congress  requires.  They  attended  the  election  in  each  of 
the  wards  and  personally  supervised  the  election  and  the  count  of  the 
votes,  and  counted  those  cast  for  Representatives  in  Congress.  Section 
2017  of  the  Revised  Statutes  of  the  United  States  makes  it  the  duty  of 
supervisors  of  elections  to  attend  the  election,  count  the  votes,  and 
remain  with  the  ballot-boxes  until  the  count  is  wholly  completed.  They 
performed  their  duty  and  made  return  of  the  result  to  the  chief  super- 
visor of  the  election,  as  required  by  law. 

The  counts  made  by  the  ward  officers  and  the  United  States  super- 
visors substantially  agree.    The  ward  officers'  count  is  as  follows : 

Votea. 

Benjamin  Dean  received 9,308 

Walbridge  A.  Field  received 9, 276 

Walbridge  A.  Field  (fourth  district) 25 

A.  Field 1 

Field 1 

Samuel  D.  Smith 1 

The  supervisors'  count  was  precisely  the  same  as  this  except  that  they 

did  not  return  the  scattering  votes  cast  for  A.  Field, Field,  and 

Samuel  D.  Smith.  By  both  of  these  counts  Mr.  Dean,  the  contestant, 
is  elected,  even  if  the  25  votes  cast  for  Walbridge  A.  Field,  fourth  dis- 
trict, and  the  2  for  A.  Field  and Field  are  counted  for  the  sitting 

member. 

The  third  count  was  made  on  the  Friday,  Friday  night,  and  Saturday 
after  the  election,  by  a  committee  of  three  aldermen,  who  assumed  to  act 
in  pursuance  of  section  4  of  an  act  of  the  State  of  Massachusetts  en- 
titled "An  act  in  addition  to  an  act  relating  to  elections,"  approved  April 
26,  1876.  The  aldermauic  count  assumes  two  phases.  The  committee, 
consisting  of  three  aldermen,  reported  the  result  of  their  count  as  fol- 
lows: 

Ballots. 

Benjamin  Dean 9,315 

Walbridge  A.  Meld 9,295 

Walbridge  A.  Field  (for  member  of  Congress  for  the  fourth  district) 25 

Wm.  A.  Field 1 

Field $ 

They  further  state  that  the  25  ballots  were  cast  in  the  eighteenth 
ward,  and  the  number  of  the  district  was  printed  on  the  ballots.    The 


192  DIGEST  OF  ELECTION  CASES. 

committee  were  of  the  opinion  that  it  was  the  intention  of  the  voters 
who  cast  these  ballots  to  vote  for  the  sitting  member;  but,  under  ad- 
vice of  the  city  solicitor,  they  submitted  the  facts  and  the  whole  subject 
to  the  judgment  and  decision  of  the  board  of  aldermen.  (Record,  i)age 
9.)  If  the  25  votes  in  question  were  counted  for  the  sitting  member 
this  count  would  elect  him  by  five  majority.  The  board  of  aldermen, 
after  considering  the  whole  subject,  reported  the  result  somewhat  dif- 
ferently, as  follows: 

Walbridge  A.  Fieldi  of  Boston,  nine  thousand  three  hundred  and  twenty;  twenty- 
five  of  which  were  headed  ward  18  and  read  as  follows:  "For  Representative  to  Con- 
gress, fourth  district,  Walbridge  A.  Field,  of  Boston." 

Benjamin  Dean,  of  Boston,  nine  thousand  three  hundred  and  fifteen. 

William  A.  Field,  one. 

Field,  three. 

Leopold  Morse,  one. 

Eufns  S.  Frost,  three. 

Francis  M.  Weld,  one.     (Eecord,  p.  10.) 

In  this  manner  the  result  was  certified  to  the  governor,  and  he  issued 
a  certificate  of  election  to  Walbridge  A.  Field.  Mr.  Dean  gave  notice 
of  a  contest  under  the  statute  of  the  United  States,  and  the  points 
made  by  the  contestant  and  the  contestee,  and  the  evidence  taken,  re- 
late to  the  validity  of  the  respective  counts,  except  as  to  wards  16  and 
18,  and  do  not  go  to  the  merits  of  the  case  further  than  the  counts 
themselves,  except  that  the  depositions  of  some  of  the  United  States 
supervisors  and  inspectors  and  of  the  aldermen  were  taken  to  show 
that  they  had  counted  correctly.  We  are  then,  in  the  first  place,  to 
determine  which  of  the  respective  counts  is  the  one  made  in  pursuance 
of  law,  and  which  this  House  must  accept  as  valid  and  binding  upon  it, 
in  the  absence  of  a  contest  going  behind  the  face  of  the  returns  as  they 
appear  by  the  respective  counts. 

As  the  count  of  the  ward  officers  and  that  of  the  United  States  super- 
visors both  elect  Mr.  Dean,  and  as  the  aldermanic  count  would  also 
elect  him  unless  the  25  votes  cast  for  the  "fourth  district"  are  to  be 
counted  for  the  sitting  member,  it  may  be  proper  first  to  consider  what 
disposition  should  be  made  of  these  25  votes. 

In  the  eighteenth  ward  of  the  city  25  ballots  were  cast  designating 
the  Congressional  office  and  candidate  as  follows: 

"  For  Eepresentative  in  Congress,  fourth  district,  Walbridge  A.  Field, 
of  Boston." 

The  election  was  held  in  the  third  district,  and  Mr.  Field  resided 
in  the  district  in  which  he  was  a  candidate.  Ought  these  ballots 
to  be  counted  for  the  sitting  member?  The  questions  involved  in 
this  point  were  ably  discussed  by  counsel  on  both  sides,  and  the  author- 
ities do  not  agree  to  such  an  extent  as  to  leave  the  question  entirely  free 
from  doubt.  But  your  committee  are  of  the  opinion  that  a  liberal  inter- 
pretation of  the  law  in  the  interest  of  enlarged  suffrage  and  the  honest 
intentions  of  electors  would  warrant  us  in  counting  these  ballots  for  the 
candidate  for  whom  they  were  evidently  intended. 

The  election  was  in  the  third  district.  The  electors  of  that  district 
had  no  legal  right  to  vote  in  the  fourth  district,  much  less  to  vote  in  the 
third  district  for  a  Representative  for  the  fourth  district.  We  must  as- 
sume, then,  that  the  persons  who  cast  these  ballots  intended  no  violation 
of  law,  but  that  they  were  acting  in  good  faith  and  were  honestly  en- 
deavoring to  express  a  choice  for  a  Representative  in  Congress  in  the 
district  in  which  they  were  entitled  to  vote.  The  office  to  be  filled  was 
that  of  "Representative  in  Congress."  That  is  what  the  voter  must 
have  looked  to  when  examining  his  ballot.    The  words  "fourth  district" 


DEAN    VS.    FIELD.  193 

do  uot  constitute  a  part  of  the  legal  designation  of  the  office,  anti  in 
this  case  we  are  inclined  to  regard  the  erroneous  designation  of  the 
number  of  the  district  a«  surplusage. 

We  are  therefore  compelled,  in  the  first  place,  to  decide  this  case  upon 
the  validity  of  the  respective  counts,  except  as  to  wards  16  and  18,  here- 
inafter considered. 

The  aldernirtni(;  count  was  made,  it  is  claimed,  in  pursuance  of  section 
4  of  the  act  of  that  State  approved  April  26,  1876,  which  is  as  follows : 

Sec.  4.  If  witliiu  three  days  uext  following  the  day  of  any  election  t«n  or  more 
qna4ified  voters  of  any  ward  shall  file  with  the  city  clerk  a  statement  in  writing 
that  they  have  reasons  to  believe  that  the  returns  of  the  ward  oflScers  are  erroneous, 
specifying  wherein  they  deem  them  in  error,  said  city  clerk  shall  forthwith  transmit 
«nch  statement  to  the  board  of  aldermen  or  the  committee  thereof  appointed,  to  ex- 
amine the  returns  of  said  election.  The  board  of  aldermen,  or  their  committee,  shall 
thereu^ton,  and  within  five  days,  Sunday  excepted,  next  following  the  day  of  election, 
open  the  envelope  and  examine  the  ballots  thrown  in  said  ward,  and  determine  the 
questions  raised;  rhoy  shall  then  again  seal  the  envelope,  either  with  the  seal  of  the 
city  or  a  seal  provided  for  the  purpose,  and  shall  endorse  upon  said  envelope  a  certifi- 
cate that  the  same  has  been  opened  and  again  sealed  by  themin  conformity  to  law  ;  and 
the  envelope,  sealed  as  aforesaid,  shall  be  returned  to  the  city  clerk.  Said  city  clerk, 
upon  the  certificate  of  the  board  of  aldermen  or  their  committee,  shall  alter  andamend 
such  ward  returns  as  have  been  proved  to  be  erroneous,  and  such  amended  returns 
shall  stand  as  the  true  returns  of  the  ward. 

This  provision  of  the  State  law  eould  not  have  been  intended  to  ap- 
ply to  the  election  of  Representatives  in  Congress.  There  is  but  one 
district  in  the  State  as  now  aj^portioned  in  which  it  could  have  been 
made  applicable,  and  that  is  the  district  in  question.  It  is  wholly  with- 
in the  city  limits  of  the  city  of  Boston,  and  hence  the  machinery  of  the 
section  applied  to  it  by  mere  accident.  It  cannot  be  presumed  that  a 
law  would  have  been  framed  by  the  legislature  of  Massachusetts  pro- 
viding for  a  review  of  the  counts  of  votes  cast  for  Representatives  in 
Congress,  which  law  could  not  possibly  apply  unless  all  the  voting  pre- 
cincts should  be  within  the  limits  of  a  single  city.  For  this  reason,  if 
for  no  other,  the  section  quoted  has  no  application  to  Congressional  elec- 
tions. 

Furthermore,  it  is  claimed  by  the  contestant  that  this  law  was  not 
even  complied  with  in  any  essential  provision.  But  your  committee 
are  of  the  opinion  that  if  the  section  had  been  strictly  complied  with, 
the  count  made  in  pursuance  of  its  provisions  would  uot  be  valid  as 
against  the  count  made  by  the  ward  officers  and  the  United  States 
supervisors  of  election.  The  statements  filed  by  the  ten  qualified  voters 
of  each  ward,  as  the  basis  for  the  aldermanic  count,  alleged  generally 
that  the  returns  of  the  ward  officers  were  erroneous  in  this,  that  they 
did  uot  correctly  give  the  result.  There  was  no  allegation  of  fraud  or 
illegality  of  any  kind.  The  election  was  conducted  strictly  in  accord- 
ance with  law,  and  the  count  and  public  declaration  of  the  result  were 
made  as  required  by  the  State  statute. 

The  duties  of  the  United  States  supervisors  in  reference  to  the  elec- 
tion are  ])rescribed  by  sections  2017,  2018,  2019  of  the  Revised  Statutes 
of  the  United  States,  which  are  as  follows : 

Sec.  2017.  The  supervisors  of  election  are  authorized  and  required  to  attend  at  all 
times  and  places  for  holding  elections  for  Representatives  or  Delegates  in  Congress  and 
for  counting  the  votes  cast  at  such  elections ;  to  challenge  any  vote  offered  by  any 
person  whose  legal  qualifications  the  supervisors  or  either  of  them  may  doubt;  to  be 
and  remain  where  the  ballot-boxes  are  kept  at  all  times  after  the  polls  are  open  until 
every  vote  cast  at  such  time  and  place  has  been  counted,  the  canvass  of  all  votes  polled 
wholly  completed,  and  the  projier  and  requisite  certificates  or  returns  made,  whether 
the  certificates  or  returns  be  required  under  any  law  of  the  United  States,  or  any  State, 
Territorial,  or  mnuicipal  law,  and  to  personally  inspect  and  scrutinize  from  time  to 

H.  Mis.  58 13 


194  DIGEST   OF   ELECTION    CASES. 

time  and  at  all  times,  on  the  day  of  election,  the  manner  in  which  the  voting  is  done 
and  the  way  and  method  in  which  the  poD-books,  registry -lists,  and  tallies  or  check- 
hooks,  whether  the  same  are  required  by  any  law  of  the  United  States,  or  any  State, 
Territorial,  or  municipal  law,  are  kept. 

Sec.  2018.  To  the  end  that  each  candidate  for  the  office  of  Representative  or  Dele- 
gate in  Congress  may  obtain  the  benefit  of  every  vote  for  him  cast,  the  supervisors  of 
election  are,  and  each  of  them  is,  required  to  personally  scrutinize,  count,  and  canvass 
each  ballot  in  their  election  district  or  voting  precinct  cast,  whatever  may  be  the  indorse- 
ment on  the  ballot,  or  in  whatever  box  it  may  have  been  placed,  or  be  found,  to  make 
and  forward  to  the  officer  who,  in  accordance  with  the  provisions  of  section  2025.  has 
been  designated  as  the  chief  supervisor  of  the  judicial  district  in  which  the  city  or 
town,  wherein  they  may  serve,  acts,  such  certificates  and  returns  of  all  such  ballots 
as  such  officer  may  direct  and  require,  and  to  attach  to  the  registry-list  and  any  and 
all  cojiies  thereof,  and  to  any  certificate,  statement,  or  return,  whether  the  same  or  any 
part  or  portion  thereof  be  required  by  any  law  of  the  United  States  or  of  any  State, 
Territorial,  or  municipal  law,  any  statement  touching  the  truth  or  accuracy  of  the 
registry,  or  the  truth  or  fairness  of  the  election  and  canvass,  which  the  supervisors  of 
the  election,  or  either  of  them,  may  desire  to  make  or  attach,  or  which  should  properly 
and  honestly  be  made  or  attached,  in  order  that  the  facts  may  become  known. 

Sec.  2019.  The  better  to  enable  the  supervisors  of  election  to  discharge  their  duties, 
they  are  authorized  and  directed  in  their  respective  election  districts  or  voting  pre- 
cincts, on  the  day  of  registration,  on  the  day  when  registered  voters  may  be  marked 
to  be  challenged,  and  on  the  day  of  election,  to  take,  occupy,  and  remain  in  such  posi- 
tion from  time  to  time,  whether  before  or  behind  the  ballot-boxes,  as  will,  in  their 
judgment,  best  enable  them  to  see  each  person  offering  himself  for  registration,  or 
offering  to  vote,  and  as  will  best  conduce  to  their  scrutinizing  the  manner  in  which 
the  registration  or  voting  is  being  conducted;  and  at  the  closing  of  the  polls  for  the 
reception  of  votes,  they  are' required  to  place  themselves  in  such  position  with  the 
relation  to  the  ballot-boxes  for  the  purpose  of  engaging  in  the  work  of  canvassing  the 
ballots  as  will  enable  them  fully  to  perform  the  duties  in  respect  to  such  canvass  pro- 
vided heroin,  and  shall  there  remain  until  every  duty  in  respect  to  such  canvass, 
certificates,  returns,  and  statements,  has  been  wholly  completed. 

Congress,  in  pursuance  of  its  constitutional  power  to  make  regulations 
as  to  the  times,  places,  and  manner  of  holding  elections  for  Eepreseuta- 
tives  in  Congress,  or  t6  alter  State  regulations  on  these  subjects,  enacted 
the  foregoing  provisions.  They  must  be  held  valid  and  binding  ui)oii 
all  the  States.  From  the  moment  of  the  enacting  of  these  provisions 
(February  28,  1871)  they  became  a  part  of  the  election  law  of  the  State 
of  Massachusetts,  overriding  all  opposing  State  statutes  made  or  to  be 
made  by  the  State,  and  the  passage  of  the  State  law  of  April  20,  1876, 
authorizing  an  aldermanic  count,  so  far  as  it  provided  for  the  taking  of 
the  final  count  of  the  votes  for  the  Representative  in  Congress  out  of 
the  supervision  and  scrutiny  of  the  United  States  supervisors  of  election 
was  an  evasion  if  not  a  nullification  of  the  Federal  law.  After  Congress 
had  provided  for  the  appointment  of  two  supervisors  of  election  for  each 
voting  place,  and  had  required  such  officers  to  count  the  votes  for  Repre- 
sentative in  Congress,  and  to  remain  with  the  ballot-boxes  until  the 
cotint  was  wholly  completed,  and  the  certificates  made  out,  it  is  not 
competent  for  any  State  to  provide  another  board  of  canvassers,  who 
may  take  possession  of  the  ballot-boxes,  exclude  the  Federal  oflicers,  and 
secretly  count  the  votes,  and  declare  a  difterent  result. 

As  the  counting  of  the  votes  is  now  admitted  to  be  the  most  impor- 
tant function  to  be  performed  in  reference  to  an  election,  laws  relating 
to  this  part  of  the  election  machinery  must  be  strictl^^  construed  and 
rigidly  enforced.  The  count  made  by  the  aldermen  was  made  in  secret, 
three  or  four  days  after  the  election,  partly  in  the  night-time,  and  the 
United  States  supervisors,  and  all  other  persons  except  the  three  alder- 
men, were  excluded  from  the  room,  and  were  not  permitted  to  see  what 
was  being  done.  A  count  made  under  such  circumstances  is  in  deroga- 
tion of  the  acts  of  Congress,  and  is  ot  no  validity  whatever. 

In  the  foregoing  considerations  relating  to  this  case,  we  have  treated  it 
solely  in  reference  to  the  validity  of  the  respective  counts.     We  had 


DEAN   VS.    FIEI,D.  195 

supposed  that  the  validity  of  the  aldermanic  count  would  not  be  seriously 
insisted  upon ;  but  since  it  has  been  urged  in  the  argument  of  counsel 
that  the  law  of  ^Massachusetts  providingfor  the  aldermanic  countis  valid, 
and  the  count  made  in  pursuance  thereof  binding  upon  this  House,  we 
will  consider  whether  that  law  has  been  com|>lied  with  in  this  case.  The 
fourth  section  of  the  act  of  the  legislature  of  ^lassachusetts,  approved 
April  2ii,  1876,  is  reHe«1  upon  as  authority  to  sustain  the  count  made  by 
the  l)oard  of  aldermen  or  their  committee.  As  this  section  confers  upon 
the  board  of  aldermen,  or  their  committee,  a  special  jurisdiction,  it  must 
be  strictly  construed,  and  such  board  of  aklermen  cannot  proceed  except 
in  strict  accordance  with  the  provisions  of  that  section. 

If  the  board  of  aldermen,  or  their  committee,  assume  to  act  in  a  man- 
ner different  from  that  prescribed  by  the  section  referred  to,  their  acts 
are  absolutely  void.  It  will  be  observed  that  the  board  of  aldermen 
are  not  by  the  laws  of  Massachusetts  a  general  returuing-board.  They 
can  only  act  in  certain  specified  cases,  and  when  the  foundation  for  their 
jurisdiction  is  laid.  It  is  provided  in  said  section  that  "if,  within  three 
days  next  following  the  day  of  an  election,  ten  or  more  qualified  voters 
of  any  ward  shall  file  with  the  city  clerk  a  statement  in  writing  that 
they  have  reason  to  believe  that  the  returns  of  the  ward  officers  are 
erroneous,  specifying  wherein  they  deem  them  in  error,  said  city  clerk  shall 
|brthwith  transmit  such  statement  to  the  board  o'f  aldermen,  or  the  com- 
mittee thereof  appointed  to  examine  the  returns  of  said  election."  The 
statement  required  by  the  ten  qualified  voters  must  specify  wherein  the 
returns  are  in  error.  It  is  not  suflBcient  to  allege  general!}-  that  the 
count  made  by  the  ward  officers  was  not  correct,  or  that  they  counted 
more  votes  for  one  candidate  than  he  was  entitled  to,  or  less  votes  for 
another  than  he  received. 

This  petition  constitutes  the  jurisdictional  faet  in  the  case,  and  un- 
less it  comi)lies  with  the  statute-  no  jurisdiction  is  conferred  on  the 
board  of  aldermen,  or  upon  their  committee,  and  all  proceedings  by 
them  not  founded  on  a  petition  which  complies  with  the  statute  are 
utterly  void  and  of  no  effect.  The  rule  of  law  applicable  in  such  cases 
is  well  established.  McCrary,  in  his  treatise  on  the  American  law  of 
elections  (sec.  280),  says  :  "  An  application  for  a  recount  of  ballots  cast 
at  an  election  will  not  be  gTanted  unless  some  specific  mistake  or  fraud 
be  pointed  out  in  the  particular  box  to  be  examined.  Such  recount 
will  not  be  ordered  upon  a  general  allegation  of  errors  in  the  count  of 
all  and  gi\ing  particulars  as  to  none  of  the  boxes."  (Kneass's  case,  2 
Parsons,  599 ;  Thompson  vs.  Ewing,  1  Brewster,  67,  97.) 

In  Skerret's  case  (2  Parsons,  509)  the  court  of  common  pleas  of 
Philadelphia  held  that  the  true  rule  "regulating  such  proceedings  should 
be  defined,  so  as  to  advance  on  the  one  hand  substantial  and  merito- 
rious and  to  arrest  on  the  other  futile  and  querulous  complaints.  It 
is  not  sufficient  to  state  generally  that  A  received  a  majority  of  votes, 
while  the  certificate  was  given  to  B,  and  therefore  the  complainants 
charge  that  there  was  an  undue  election.  This  is  but  a  conclusion,  and 
it  is  not  for  the  pleader  to  state  conclusions,  but  facts  from  which  the 
court  may  draw  conclusions.  If  fraud  is  alleged,  the  petition  must  state 
the  manner  in  which  the  fraud  was  committed,  the  number  of  votes 
fraudulently  received  or  fraudulently  rejected."  (See  Carijenter's  case, 
2  Parsons,  537:  Lelar's  case,  2  Parsons,  548;  Kneass's  case,  2  Parsons, 
553.) 

It  was  held  also  by  the  supreme  court  of  Pennsylvania,  in  the  case 
of  Gibbons  vs.  Shepherd  (2  Bi-ewster,  p.  2),  that  certainty  to  a  com- 
mon intent  was  required,  that  the  petition  should  not  be  so  loosely 


196  DIGEST    OF   ELECTION    OASES. 

drawn  as  to  permit  the  powers  of  sworn  officers  chosen  by  the  people 
to  be  inquired  into  without  well-df  fined  cause.  McCrary,  in  section  283 
of  his  work,  says:  "  The  same  rule  should  be  applied  to  a  pleading  ot  this 
character  that  is  applied  to  till  other  similar  pleadings.  It  should  state 
in  a  legal  and  logical  form  the  facts  which  constitute  the  ground  of  the 
complaint.  Nothing  more  is  required,  nothing  less  will  suffice."  The 
supreme  court  of  Illinois  (1  Breese,  285)  held  "  that  an  affidavit  for  a 
writ  of  attachment  which  does  not  comply  with  the  statute  confers  no 
jurisdiction,  and  all  subsequent  proceedings  are  void."  As  the  fourth 
section  of  the  Massachusetts  act  is  held  to  confer  the  jurisdiction  upon 
the  board  of  aldermen  to  count  these  votes  upon  the  filing  of  a  petition 
specifying  the  errors,  if  such  petition  does  not  comply  with  the  statutes 
no  jurisdiction  is  conferred. 

The  right  of  the  board  of  aldermen  or  their  committee  to  examine  the 
ballots  is  not  to  be  exercised  except  in  certain  cases  and  in  the  manner 
provided  by  the  law  above  referred  to.  The  statute  gives  no  general 
right  to  substitute  an  aldermanic  count  for  a  ward  count.  The  powers 
of  the  aldermen  are  limited  to  specified  cases.  Mr.  Howland,  city  solic- 
itor of  Lynn  (page  93  of  the  Kecord),  in  an  opinion  submitted  to  the 
mayor  and  board  of  aldermen  of  that  city  on  the  8th  of  l^ovember, 
1876,  in  reference  to  a  similar  case,  advised  the  aldermen  that  the  peti- 
tioners had  failed  to  specify  wherein  they  deem  the  returns  to  be  in 
error,  and  that  in  the  absence  of  such  specification  there  was  no  ques-' 
tion  raised  for  the  aldermen  or  committee  to  determine.  The  legislature 
of  Massachusetts  in  a  number  of  contested  election  cases  adopted  the 
following  rule  (page  78  of  the  Record),  in  the  case  of  Morse  against 
Lonnergan.  The  rule  referred  to  is  this:  That  in  the  absence  of  any 
evidence  of  fraud  in  the  manner  of  calling,  holding,  or  conducting  the 
meeting  at  which  the  election  is  held,  or  in  the  manner  of  ascertaining 
the  result  of  the  election,  or  unless  the  petitioner  shows  a  reasonable 
ground  for  supposing  an  error  in  the  count  other  than  the  mere  close- 
ness of  the  vote,  the  committee  will  not  recount  the  ballots. 

The  same  rule  was  adopted  in  the  case  of  Walden  vs.  Chadwell  (Kec- 
ord, page  79),  and  in  the  following  contested-election  cases  decided  by 
the  house  of  representatives  of  the  State  of  Masgachusetts  (the  opin- 
ions in  each  case  are  printed  at  length  in  the  Record) :  Scribner  vs.  Keyes, 
page  85;  Garity  vs.  Crossman,  page  91;  Graves  rs.  Edson,  page  94 ; 
Austin  vs.  Sweet,  page  98 ;  Burt  vs.  Babbitt,  page  102 ;  Thomas  R. 
Green,  page  103,  and  Stimpson  vs.  Breed,  page  110.  By  careful  exam- 
inations of  the  opinions  in  the  foregoing  cases  recently  decided  in  the 
State  of  Massachusetts  it  will  be  seen  that  it  is  well  settled  that  the 
mere  fact  of  a  close  vote  will  not  justify  a  recount,  either  by  the  board 
of  aldermen  or  by  a  legislative  committee.  It  thus  appears  that  the  law 
in  this  class  of  cases  is  well  settled  by  the  Massachusetts  legislature. 
In  the  case  now  under  consideration  no  error  is  alleged,  except  that  more 
votes  were  counted  for  one  candidate  than  he  was  entitled  to,  and  less 
for  the  other  than  he  received ;  or,  in  other  words,  mere  closeness  of  the 
vote  is  the  sole  ground  for  the  recount.  The  chairman  of  the  sitting 
member's  committee  testified  (page  144  of  the  Record)  that  he  knew  of 
no  errors  in  the  count  when  the  petitions  were  prepared,  but  that  as 
Mr.  Field  was  defeated  according  to  the  ward  officers'  and  supervisors' 
count,  he  could  lose  nothing  by  a  recount,  and  might  be  benefited  by  it. 

This  being  the  sole  reason  of  a  recount  of  the  ballots,  and  no  specifi- 
cations having  been  made  upon  which  the  aldermen  could  act,  all  their 
proceedings  in  reference  to  such  recount  are  without  authority  of  law 


DEAN    VS.    FIELD.  197 

and  of  no  effect.     The  petition,  which  was  signed  by  the  ten  voters  of 
each  ward,  was  the  same  in  each  of  the  wards,  and  is  as  follows : 

To  the  city  cleric  of  the  city  of  Boston : 

The  undersigned,  qualified  voters  of  ward  13,  in  the  third  Congresaional  district, 
hereby  state  that  they  have  reason  to  believe  that  the  returns  of  the  ward  officers  of 
said  ward  for  member  of  Congress  iu  said  Congressional  district,  at  the  election  of  Nov- 
ember 7tli,  1876,  are  erroneous,  in  that  all  the  ballots  cast  for  Walbridge  A.  Field  as 
member  of  Congress  were  not  counted  and  credited  to  him,  and  that  more  ballots  were 
credited  to  Benjamin  Dean  as  member  of  Congress  than  were  cast  for  him  ;  and  they 
ask  for  a  recount  of  the  vote  of  said  ward  for  member  of  Congress,  in  accordance  with 
the  provisions  of  section  4  of  chapter  188  of  the  acts  of  the  year  1876. 

(Signed  by  15  voters  of  the  ward.) 

This  statement  does  not  specify  wherein  the  ward  returns  are  in  error. 
It  simply  states  that  the  signers  have  reason  to  believe  that  the  returns 
of  the  ward  officers  are  erroneous,  and  that  all  the  ballots  cast  for  one 
candidate  were  not  counted,  and  that  more  ballots  were  cast  for  the 
other  candidate  than  he  received.  Nothing  can  be  more  general.  The 
petition  simply  states  a  conclusion,  and  no  jurisdictional  fact  appears. 
The  statute,  it  will  be  remembered,  authorizes  the  aldermen  "  to  de- 
termine the  questions  raised."  The  petition  raises  no  question.  It 
simply  concludes  by  asking  for  a  recount  of  the  votes.  The  law  did 
Bot  authorize  the  petitioners  to  ask  for  a  recount.  It  was  the  duty  of 
the  board,  or  of  their  committee,  to  open  the  envelopes  and  examine 
(not  to  count)  the  balh>ts  thrown  in  said  ward,  and  "determine  the 
questions  raised."  It  will  be  observed  that  the  word  "  examine"  is  used 
in  reference  to  the  ballots,  not  the  word  "  count."  They  were  author- 
ieed  simply  to  examine  the  ballots  to  determine  the  "  questions  raised." 

This  fact  presupposes  another  equally  important,  to  wit,  that  the  pe- 
tition raised  specific  questions,  which  could  be  determined  by  examining 
ihe  ballots,  not  by  recounting  them.  As,  for  instance,  the  petitioners 
might  have  alleged  that  fifty  ballots  were  counted  as  straight  Eepub- 
lican  tickets,  but  that  upon  examining  these  ballots  it  would  be  found 
that  tlie  name  of  Mr.  Dean  had  been  printed  upon  these  tickets,  and 
that  this  fact  was  overlooked  in  counting  the  ballots;  that  they  had 
been  counted  simply  as  straight  tickets.  If  such  a  specification  had 
been  made  an  examination  of  the  ballots  would  have  determined  the 
question  raised.  Or  the  petitioners  might  have  alleged  in  ward  18  that 
twenty-five  (25)  ballots  cast  for  Representative  in  Congress,  fourth  dis- 
trict, for  Walbridge  A.  Field,  of  Boston,  were  not  counted  for  Mr.  Field 
by  the  ward  officers,  as  they  were  required  by  law  to  count  them,  and 
that  said  ballots  were  intended  to  be  counted  by  the  persons  who  cast 
them  for  the  said  Walbridge  A.  Field  for  Representative  in  Congress, 
third  district.  Such  allegati<ms  as  these  in  the  petition  would  have 
raised  questions  whicli  could  have"  been  determined  by  an  examination 
•f  the  ballots.  Nowhere  in  the  law  of  Massachusetts  are  the  aldermen 
authorized  generally  to  make  a  recount  of  the  ballots.  Their  authority 
only  extends  to  an  examination  of  the  ballots  which  may  have  been 
specified  in  the  petition,  to  determine  the  questions  raised. 

It  will  be  observed  by  examining  the  fourth  section  of  the  law  of 
Massachusetts  that  jurisdiction  is  conferred  upon  the  board  of  alder- 
men, or  their  committee,  to  open  the  envelopes  and  examine  the  ballots 
thrown;  and  upon  the  certificate  of  the  board  of  aldermen,  or  their  com- 
mittee, the  city  clerk  shall  amend  the  ward  returns  of  the  district.  The 
function  of  canvassing  votes,  referred  to  in  this  section,  not  pertaining 
to  the  office  of  aldermeu,  the  specific  authority  to  the  board  of  alder- 
men, or  to  their  committee,  is  such  a  jurisdiction  as  cannot  be  exercised 


198  DIGEST  OF  ELECTION  CASES. 

by  both  at  the  same  time.  The  committee  does  not  act  as  a  committee 
of  the  aldermen,  responsible  to  the  aldermanic  board,  and  required  to 
report  to  it,  but  it  acts  upon  the  specific  jurisdiction  conferred  upon  it 
by  the  statute,  and  when  the  committee  takes  jurisdiction  of  the  case 
it  ousts  the  board  of  aldermen  of  the  concurrent  jurisdiction  that  it 
might  have.  But  notwithstanding  this  fact  an  examination  of  the  record 
in  this  case  will  show  that  the  committee  of  aldermen,  consisting  of 
three  members,  performed  the  functions  of  canvassers  or  examiners  of 
the  ballots  in  this  case;  that  they  agreed  upon  a  report  as  to  the  result 
of  that  count;  that  they  then  submitted  their  report  to  the  board  of 
aldermen,  and  that  the  board  of  aldermen  then  took  jurisdiction  of  the 
case,  amended  the  return  as  prepared  by  the  committee,  and  submitted 
a  different  return  to  the  city  clerk  as  the  result  of  the  aldermanic  count. 

The  committee  of  aldermen  having  taken  jurisdiction  of  this  case, 
could  only  report  its  proceedings  to  the  city  clerk,  and  the  city  clerk  was 
in  duty  bound  to  enter  the  report  of  the  aldermen  upon  the  record,  or 
to  alter  and  amend  the  ward  returns  in  the  manner  pointed  out  by  the 
committee  of  aldermen.  Assuming  that  the  committee  had  jurisdiction, 
their  acts  were  legal,  and  their  finding  was  the.only  one  which  the  clerk 
was  authorized  to  enter  as  the  result  of  such  examination.  But  the  clerk 
did  not  do  this.  He  entered  up  as  the  result  of  the  examination  of  the 
ballots,  in  pursuance  of  the  authority  conferred  by  the  petition,  an  order 
made  by  the  board  of  aldermen  of  the  city  of  Boston,  which  board  had 
not  examined  the  ballots  and  had  not  determined  for  itself  the  questions 
raised,  and  which,  according  to  the  letter  of  the  law  (the  committee 
having  taken  jurisdiction  of  the  case),  had  no  authority  whatever  to  act 
in  the  premises.  Hence  we  hold  that  the  pretended  recount  by  the 
aldermen  was  not  made  in  pursuance  of  the  law  of  Massachusetts,  and 
cannot  be  set  up  as  a  legal  count  of  the  votes  for  members  of  Congress 
in  the  third  Congressional  district,  as  against  the  count  made  by  the 
ward  officers  and  supervisors  of  the  United  States. 

The  laws  of  Massachusetts  in  reference  to  conducting  and  canvassing 
elections  must  be  construed  together.  It  will  be  seen  that  every  safeguard 
has  been  thrown  about  an  election  in  that  State.  Especially  is  it  so  in  the 
city  jof  Boston.  Three  inspectors  of  the  ward  elections  are  appointed  by 
the  mayor ;  three  are  elected  by  a  vote  of  the  people ;  and  these,  together 
with  the  warden,  who  presides  at  the  ward  meeting,  and  the  clerk,  consti- 
tute aboard  ofeight  persons,  representingall  shades  of  political  sentiment, 
and  is  composed  of  persons  selected  in  such  a  manner  as  to  secure  integrity 
and  fairness  in  the  conduct  of  the  election,  in  thecanvassingof  the  returns, 
and  declaration  of  the  result.  Tlie  election  must  be  held  openly.  Th(5 
voting  and  counting  are  both  done  in  the  presence  of  the  people.  Every 
opportunity  is  offered  to  carefully  scrutinize  the  proceedings.  The  in- 
spectors are  required  to  count  the  votes  while  the  election  is  progress- 
ing, and  to  announce  the  result  as  soon  as  possible  after  the  election, 
and  openly  declare  the  result.  In  addition  to  these  State  provisions, 
the  United  States  supervisors,  one  of  each  political  part}-,  were  present 
at  the  election  in  question,  and  they  also  carefully  scrutinized  the  bal- 
lots and  counted  tlie  votes  in  each  of  the  wards.  The  testimony  is  all 
to  the  effect  that  the  election  was  honestly  and  fairly  conducted  in  every 
part  of  the  city,  and  no  frauds  are  anywhere  alleged.  The  fairness  of 
a  count  made  under  such  circumstances  must  be  admitted  by  all,  and 
such  a  count  ought  not  to  be  set  aside  without  the  very  best  of  reasons, 
founded  upon  the  law  and  the  facts. 

On  the  contrary,  the  aldermanic  count  was  made  of  the  whole  vote  of 
tlie  district  by  three  persons,  who  conducted  their  count  in  secret  and 


DEAN    VS.    FIELD.  199 

were  not  uinler  any  restraint  in  reference  to  the  count  or  the  declaration 
of  the  result.  A  recount  is  always  viewed  with  suspicion,  and  especially 
eo  when  the  orijtrinal  count  was  entirely  free  from  all  allegations  of  fraud 
or  incoinpetency  on  the  part  of  the  election  officers,  and  was  conducted 
in  open  daylight  in  the  presence  of  the  voters.  It  is  not  pretended  that 
there  was  any  fraud  in  this  election,  nor  were  any  errors  known  to  exist 
when  the  petitions  were  signed.  There  was  no  reason  on  the  part  of 
tlic  petitioners,  so  far  as  the  facts  were  concerned,  to  justify  such  belief. 
The  only  reason  that  could  have  existed  was  that  the  sitting  member 
was  not  elected  by  the  ward  counts.  He  could  not  be  elected  without 
a  recount,  and  as  the  majority  was  small,  he  might,  by  a  careful  count, 
by  skillful  manipulators  of  the  ballots,  overcome  the  small  majority  by 
which  the  contestant  was  returned.  To  uphold  a  count  under  such  cir- 
cumstances would  be  to  pervert  both  the  letter  and  spirit  of  the  law; 
would  be  to  encourage  futile  and  querulous  complaints  and  groundless 
and  frivolous  contests. 

The  State  law  providing  for  the  aldermanic  couut  was  wholly  disre- 
garded by  the  city  clerk.  The  law  requires  that  he  should  enter  the 
ward  returns  at  length  ui)on  the  records,  and  that  such  returns  should 
stand,  except  that  he  should  alter  and  amend  the  ward  returns  in  ac- 
cordance with  the  certificate  of  the  board  of  aldermen  or  their  commit- 
tee. It  will  be  observed  that  the  ward  returns  are  continually  kept  in 
view  as  the  record  of  the  votes  cast.  These  ward  returns,  as  amended 
by  the  aldermen,  must  be  certified  by  the  clerk  to  the  governor  and 
council  of  the  commonwealth.  But  it  will  be  observed  by  examination 
of  the  record  in  this  case  that  this  part  of  the  law  has  been  wholly  dis- 
regarded. The  clerk  seems  to  have  withheld  the  entry  of  any  returns 
u]>on  his  records  until  the  receipt  of  the  certificate  from  the  board  of 
aldermen,  when  their  return  or  count  of  the  votes  was  entered  upon  the 
record  as  the  true  return  of  the  ward.  We  do  not  contend  that  the  clerk 
by  his  illegal  conduct  could  invalidate  the  proce'edings,  but  the  board 
of  aldermen  and  the  committee  having  acted  without  jurisdiction,  and 
the  clerk  having  also  acted  without  authority  of  law,  their  prodeedings 
are  all  illegal  and  void,  and  the  recount  made  by  them  and  certified  in 
the  manner  shown  is  of  no  validity  whatever.  / 

There  is  in  Massachusetts  no  county  or  other  canvassing  board.  All 
returns  are  sent  to  the  governor  and  executive  council,  and  the  gov- 
ernor and  council  examine  the  returns  and  determine  who  is  elected. 
The  following  are  the  provisions  of  the  State  law  on  this  subject : 

Skc.  15.  The  votes  in  elections  foi>national,  State,  county,  and  district  officers  shall 
be  received,  sorted,  and  counted  by  the  selectmen,  and  by  the  ward  officers,  and  pub- 
lic declaration  made  thereof  in  open  town  and  ward  meetings.  The  names  of  persons 
voted  for,  the  nnmbt-r  of  votes  received  for  each  person,  and  the  title  of  the  office  for 
which  he  is  projtosed  shall  he  entered  in  wonts  at  length  by  the  town  and  ward  clerks 
in  their  records.  The  ward  clerlvs  shall  forthwith  deliver  to  the  city  clerk  certified 
copies  of  sucli  records,  who  shall  forthwitli  euter  the  same  in  the  city  records. 

Sec.  17.  City  and  town  clerks  shall,  within  t-en  days  from  the  day  of  an  election  for 
governor,  lieutenant-governor,  councilors,  senators,  secretary,  treasurer,  and  receiver- 
general,  auditor,  attorney-general.  Representatives  in  Congress,  commissioners  of  in- 
solvency, sheritfs,  registers  of  probate  and  insolvency,  district  attorneys,  or  clerks  of 
courts,  transmit  copies  of  the  records  of  the  votes,  attest-d  by  them,  certitied  l)y  the 
mayor  and  aldermen  or  selectmen  and  sealed  up,  to  the  secretary  of  the  common- 
wealth. 

It  will  thus  be  seen  that  town  clerks  are  to  record  in  *•'  words  at  length" 
*'  the  names  of  persons  voted  for,  the  number  of  votes  for  each  person^ 
and  the  title  of  the  office  for  which  he  is  proposed."  Ward  clerks  are 
to  send  copies  of  these  records  to  the  city  clerk.s,  who  are  forthwith  to 
record  them  in  "  words  at  length"  in  the  city  records,  and  the  copies  of 


200  DIGEST    OF    ELECTION    CASES. 

these  records  "in  words  at  length"  are  to  be  sent  to  the  secretary  of 
state,  for  the  use  of  the  governor  and  council.  The  records  thus  certi- 
fied are  the  only  legal  records  relating  to  elections.  These  are  the  rec- 
ordjS  that  the  committee  of  aldermen  may  by  their  certiflcate  direct  the 
city  clerk  to  amend  whenever  they  have  acted  under  authority  of  law 
in  amending  the  same.  In  this  case  there  is  no  such  record,  nor  has 
any  such  record  been  kept  by  the  clerk  of  the  city  of  Boston.  He  never 
recorded  the  ward  returns  as  he  was  required  to  do.  He  made  an  ag- 
ggreate  statement  of  the  vote  (Record,  p.  42)  not  in  accordance  with 
the  ward  returns  or  the  vote  of  the  board  of  aldermen,  and  even  this 
entry  was  made  eight  days  after  the  returns  were  tiled  with  him. 

Another  fatal  objection  to  the  aldermanic  count  is  that  the  committee 
who  examined  these  ballots  never  certified  to  the  city  clerk  any  amend- 
ments of  the  ward  returns.  The  committee  was  the  only  body  to  do 
this.  The  board  of  aldermen  merely  passed  a  vote  as  to  the  form  of  the 
certificate  to  the  secretary  of  state,  not  to  the  city  clerk ;  and  two  of 
the  committee  who  examined  the  ballots  voted  against  the  return  which 
the  board  of  aldermen  directed  to  be  made  to  the  secretary  of  state. 
Thus  there  was  no  certificate  of  any  kind  filed  with  the  clerk  upon 
which  he  could  alter  thf  ward  returns,  and  the  only  action  that  the  com- 
mittee took  in  reference  to  amending  the  ward  returns  was  reversed  by 
the  board,  and  neither  bod^^  certified  any  errors  to  the  clerk.  The  vote 
of  the  board  was  without  jurisdiction,  and  the  report  of  the  committee^ 
which  alone  could  act  in  the  premises,  was  never  made  to  the  clerk,  and 
the  clerk  never  made  any  entries  or  corrections  of  ward  returns  in  ac- 
cordance with  the  findings  of  the  committee  that  examined  the  ballots. 
The  whole  proceedings,  on  the  part  of  the  committee,  the  board  of  al- 
dermen, and  the  clerk,  were  without  authority  of  law;  and  the  recount 
which  is  set  up  in  this  case  as  the  product  of  such  illegal  proceeding* 
is  entirely  invalid.  Tie  contestee  bases  his  right  to  a  seat  in  this  House 
upon  the  count  made  by  the  aldermen,  and  since  we  have  shown  that 
the  recount  and  all  the  proceedings  upon  which  it  is  based  are  wholly 
illegal  and  void,  the  contestee  derives  no  title  to  his  seat  by  reason 
thereof. 

We  have  treated  the  case  so  far  as  one  depending  wholly  upon  the 
legality  of  the  respective  counts,  but  as  to  two  of  the  wards  in  this  dis- 
trict we  are  not  confined  to  the  legality  of  the  counts  as  such.  The  con- 
testant and  the  contestee  have  gone  behind  the  returns  in  wards  16  and 
18,  and  have  taken  evidence  in  relation  to  the  truth  of  the  findings  of 
the  oflScial  counts.  It  will  be  admitted  by  all  that  the  House,  when  ex- 
ercising its  authority  and  jurisdiction  to  decide  upon  the  elections,  re- 
turns, and  qualifications  of  its  members,  is  not  jirecluded  by  the  face  of 
the  returns,  but  may,  in  its  discretion,  proceed  to  inquire  into  the  valid- 
ity of  the  election  of  any  one  of  its  members,  and  in  such  inquiry  ha» 
all  the  power  of  a  court  in  cases  of  quo  warranto.  The  fact  that  a  per- 
son has  received  a  certificate  of  election  to  an  office  does  not  oust  the 
proper  court  of  jurisdiction  to  try  the  title  to  the  office.  The  certificate 
is  merely  prima  facie  evidence  of  the  election  of  the  person  holding  it, 
and  this  House  may  go  behind  the  returns,  and,  upon  the  merits,  find  » 
different  result.  {Ex  parte  Ellyson,  20  Gratt.,  Va.,  10;  McCrary,  secs^ 
145,  349,  369,  379.) 

If  we  assume  for  the  sake  of  the  argument  that  the  aldermanic  count 
was  legal  and  valid  in  the  absence  of  evidence  going  behind  the  returns^ 
still  we  may,  by  oral  evidence,  show  that  such  return  was  not  the  true 
result  of  the  election  in  any  one  of  the  wards  or  in  all  of  them.  As  be- 
fore stated,  in  wards  16  and  18  the  evidence  in  the  record  goes  behind 


DEAN    VS.    FIELD.  201 

the  official  counts,  and  a  careful  examination  of  this  evidence  will  not 
fail  to  establish  clearly  what  was  the  true  result  of  the  election  in  said 
waids,  independently  of  the  official  counts.  It  is  contended  by  the  con- 
testee  that  the  United  States  supervisors  are  not  such  counting  or  can- 
vassing officers  as  are  authorized  by  law  to  make  a  legal  and  valid  can- 
vass of  the  resjilt  of  the  vote  in  the  wards  where  they  act.  The  con- 
testee  insists  that  the  United  States  supervisors  had  no  other  function 
to  ])erform  than  that  of  mere  witnesses  of  the  election,  and  that  they 
were  simply  authorized  to  be  present,  to  look  on,  to  count  and  canvass, 
and  make  sucli  notes  as  they  might  think  necessary,  but  that  they 
were  not  authorized  to  make  a  return  to  any  State  officer  or  to  this- 
House.  It  is  contended  that  they  were  simply  to  be  used  as  official 
witnesses  in  cases  of  subsequent  contests  under  the  statute.  Assum- 
ing this  view  of  their  duties  to  be  correct,  it  will  be  conceded  that  such 
supervisors  may  be  called  as  witnesses  in  this  contest  to  testify  in 
regard  to  anj'  facts  within  their  knowledge  relating  to  the  election.  The^ 
ward  officers,  eight  in  number,  under  their  official  oaths,  certified  certain 
returns  as  the  true  result  of  tlie  vote  cast  in  the  several  wards. 

We  may  assume  that  each  of  these  eight  officers  in  each  of  the  ten 
wards  of  the  city,  if  called  to  testify,  would  swear  that  the  return 
which  they  made  was  the  true  result  of  the  election.  Some  of  the  in- 
spectors were  called  and  did  so  testify  as  to  the  truth  of  the  ward  re- 
turns. The  committee  of  three  aldermen  who  examined  the  ballots,  and 
assumed  to  make  a  recount  of  them,  were  also  sworn  in  the  contest  and 
testified  as  to  the  manner  in  which  they  counted,  and  that  their  return 
was  believed  by  them  to  be  true.  If  we  cannot  set  off  one  return  against 
the  other,  and  if  the  sworn  statements  of  the  persons  who  made  these 
returns  are  not  to  be  weighed  as  evidence  according  to  the  number  of 
witnesses  on  either  side,  and  if  the  counts  are  to  stand  upon  their  legal 
basis  solely  with  reference  to  each  other,  the  evidence  of  the  aldermen 
and  of  the  inspectors  taken  in  the  contest  will  not  add  anything  to  the 
Talidity  of  the  respective  counts,  or  to  the  truth  thereof.  But  the  evi- 
dence of  outsiders,  of  others  than  the  inspectors  and  aldermen,  who 
may  have  reliable  information  on  this  subject,  may  be  considered  as 
•orroborative  or  not  of  either  of  the  counts.  Let  us,  then,  consider 
what  corroborative  testimony  there  is  in  the  record  in  reference  to  the 
several  counts. 

In  order  that  a  clear  understanding  may  be  had  of  all  the  evidence- 
teken  in  the  contest  relating  to  the  truth  of  the  counts,  we  will  repro- 
iace  from  the  record  that  portion  of  the  evidence  which  will  throw  light 
mpou  the  subject.  The  evidence  of  Viles  best  states  the  methods  and 
value  of  the  aldermanic  committee's  count.     He  testifies  as  follows  : 

Int.  8.  How  di<l  the  committee  proceed  to  count  ?  State  fully  and  particularly  all 
that  was  done  T — A.  Stebbins,  being  chairman  of  the  committee,  would  take  the  box, 
place  it  upon  the  table  before  us,  take  his  knife  and  break  the  seal  and  open  the  box 
in  our  presence,  lay  the  ballots  out  upon  the  table,  part  at  a  time  as  required ;  he 
would  sort  them  out,  count  them  in  twenty-fives,  pass  them  to  me;  I  would  count 
them,  hand  them  to  O'Brien  ;  he  would  lay  the  packages  on  the  end  of  the  table,  iu 
packages  of  twenty-five  at  a  time,  one  package  across  the  other,  so  if  there  was  an 
error  iu  the  count  we  could  easily  go  back  of  the  packages  and  correct  it.  Occasionally 
I  would  find  a  package  of  twenty- four  as  it  came  from  Stebbins.  We  were  counting 
for  members  of  Congress,  third  district,  in  this  way,  and  I  would  hand  it  back  to  Steb- 
liins,  and  he  would  recount  it  and  place  another  ballot  with  it ;  and,  occasionally,  one 
with  twenty-six ;  1  would  pass  that  to  him,  and  one  would  be  taken  from  it ;  then  I 
would  recount  it,  and  pass  it  to  O'Brien.  I  think,  iu  one  or  two  instances,  a  package 
would  pass  me,  and  O'Brien  would  detect  the  error.  That  was  the  modus  operandi  iu 
regard  to  all  the  ballots. 

On  the  other  hand,  the  following  is  the  evidence  and  testimony  re- 
garding the  correctness  of  the  ward  count  in  ward  16 : 


202  .  DIGEST    OF    ELECTION    CASES. 

ward-officer's  return. 
City  op  Bostox: 

At  a  legal  meeting  of  the  inliabitauts  of  ward  number  sixteen  in  the  citv  of  Boston,  in 
the  county  of  Suffolk,  and  Commonwealth  of  Massachusetts,  qualified  as  the  law  directs, 
holdeii  in'^said  ward  on  Tuesday,  the  seventh  day  of  November,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-six,  for  the  purpose  of  giving  in  their  votes 
for  one  able  and  discreet  person,  being  an  inhabitant  of  district  number  three,  to  rep- 
resent said  district  in  the  next  Congress  of  the  United  States,  the  whole  number  of 
votes  given  in  as  aforesaid  were  sorted,  counted,  recorded,  and  declaration  thereof 
made,  as  by  the  constitution  and  laws  are  directed,  and  were  for  the  following  per- 
sons : 
Walbridge  A.  Field  had  six  hundred  and  twenty-one  (C21)  votes. 
Benjamin  Dean  had  eight  hundred  and  ninety-six  (f^96)  votes. 

In  testimony  whereof  the  warden,  inspectors  of  election,  and  clerk  of  said  ward  hav© 
hereunto  set  their  hands  the  seventh  day  of  November,  in  the  year  of  our  Lord  on» 
thousand  eight  hundred  and  seventy-six. 

ISAAC  J.  WETHERBY,  Warden. 
RANDALL  G.  BURRELL, 
FRANK  G.  PARKER, 
W.  HARRY  NEAL, 
FRANCIS  M.  SMITH, 
PATRICK  M.  DENON, 

Inspectors. 
CHARLES  B.  HUNTING,  Clerk. 

A  true  copy  of  original  return,  duly  filed  in  city  clerk's  office. 
Attest : 

S.  F.  McCLEARY, 

City  Clerk. 

• 

United  States  Supervisor's  Return. 

Boston,  November  8,  1876. 
This  is  to  certify  that  the  undersigned  persons  have  received  the  number  of  votes 
affixed  to  their  names  in  ward  sixteen,  Boston,  on  Tuesday,  November  the  7th,  for 
Representatives  to  Congress  from  the  third  Congressional  district  of  Massachusetts. 
Benjamin  Dean,  897. 
Walbridge  A.  Field,  621. 

JOHN  F.  DALY, 
ABRAHAM  J.  LAMB, 

Supertnsors. 

The  discrepancy  of  the  vote  between  the  ward  officers'  count  and  the 
supervisor's  count,  instead  of  tending  to  impeach  either  count,  is  strong 
evidence  of  their  correctness,  as  it  relates  to  Fitzgerald's  vote,  which  was 
evidently  returned  as  it  should  have  been  by  tlie  supervisors,  and  not 
by  the  ward  officers.  (See  Daly's  testimony  in  answer  to  cross  interroga- 
tory 5.)  It  was  also  erroneously  not  counted  by  the  aldermanic  com- 
mittee, as  appears  by  the  minutes  of  Stebbins  and  O'Brien.  ]!?^ow  we 
come  to  the  testimony  of  the  witnesses  as  to  the  results  of  the  counting 
of  the  ballots  at  the  ward-room,  and  the  manner  and  care  of  the  count- 
ing: 

Deposition  of  Abraham  Lamb. 

Int.  2.  What  office,  if  any,  did  you  hold  in  ward  16  on  November  7,  1876 1 — A.  United 
'States  supervisor  of  election,  representing  the  Democratic  party. 

Int.  3.  Did  you  attend  at  the  polls  on  that  day  and  faithfully  discharge  your  duties 
as  such  supervisor  f — A.  I  did. 

Int.  4.  Did  you  count  the  ballots  cast  for  member  of  Congress  carefully,  and  make  a 
true  return  of  the  number  cast  for  each  candidate  to  the  chief  supervisor  ? — A.  Yes,  sir. 

Int.  5.  Did  Mr.  Daly,  the  Republican  supervisor,  also  count  the  same  ballots  ? — A. 
He  did. 

Int.  6.  Have  you  any  doubt  that  you  countM  for  Mr.  Dean  and  Mr.  Field  all  the  bal- 
lots actually  cast  for  them,  respectively  f — A,  I  have  none. 

Int.  7.  Did  you  know  of  any  error  or  mistake  being  made  in  this  ward  on  November 


DEAN    VS.    FIELD.  •  203 

7,  1876,  iu  the  couut  and  return  of  vot.e«  cast  for  meuibor  of  Coagresa  ? — A.  No,  sir;  I 
did  not. 

Cross-examination  by  William  G.  Russbll,  Esq.,  of  counael  for  Mr.  Field,  the  in- 
cumbent. 

Cro89-int.  1.  Did  you  discover  any  error  in  the  coant  of  the  warden  and  clerk  f — A. 
No,  sir. 

Cross-in t.  2.  Did  yoti  remain  till  the  ballots  were  put  into  the  boxes  and  sealed  up? — 
A.  Yes,  sir. 

Deposition  of  John  F.  Daly. 

Interrojiatory  1.  Please  state  your  name,  age,  residence,  and  occupation. — Answer. 
John  F.  Daly;  thirty-six;  130  Castle  street,  ward  16,  Boston;  night-watchman  fort* 
TJnftud  Spates  Government  at  custom-house. 

lut.  -2.  What  office,  if  any,  did  you  hold  in  ward  16  on  November?,  1876  f — A.  United 
States  supervisor  of  election,  re])resenting  the  Republican  party. 

Int.  3.  Did  you  atteud  at  the  poll.s  in  ward  16  on  November  7,  1876,  and  faithfully 
discharf:;e  your  duties  as  United  States  supervisor? — A.  To  the  best  of  my  knowledge 
and  ability  I  did. 

Int.  4.  Did  you  count  the  ballots  cast  for  member  of  Congress  carefully,  and  make 
a  true  return  of  the  number  cast  for  each  candidate  to  the  chief  supervisor  ? — A.  To 
the  best  of  my  knowledge  and  belief  I  made  an  accurate  count  and  returned  the  same 
to  the  commissioner,  the  chief  supervisor. 

Int.  .5.  Did  Mr.  Lamb,  the  other  supervisor,  also  count  the  same  ballot*  ? — A,  He  did. 

Int.  6.  Have  yon  any  doubt  that  you  counted  for  Mr.  Field  all  the  ballots  actually 
cast  for  him  ? — A.  None  whatever. 

Int.  T.  Did  you  know  of  any  error  or  mistakes  being  made  in  this  warden  November 
7,  1876,  in  the  count  and  returns  of  votes  cast  for  member  of  Congress? — A.  I  don't 
understand  that  question.  (Question  repeated.}  None  that  I  know  of,  except  that  I 
have  heard  of  the  recount  by  the  board  of  aldermen. 

Cross-examination  by  William  G.  Russell,  Esq.,  of  counsel  for  the  incumbent: 

Cross-int.  1.  How  long  did  you  remain  in  the  ward-room  on  the  day  of  election? — 
A.  From  the  time  the  polls  opened  until  the  ballots  were  sealed  and  delivered;  all  day, 
until  quite  into  the  evening;  as  late  as  s^ix  o'clock,  if  not  later. 

Cross-int.  2.  Did  you  see  the  ballots  put  into  the  box  and  the  box  carefully  sealed  ? — 
A.  Yes,  sir ;  I,  in  connection  with  the  other  supervisor,  put  them  in  myself;  we  both 
put  them  iu  together. 

Cross-int.  3.  Were  the  ballots  you  put  into  the  box  the  same  that  you  had  counted, 
and  no  others  ? — A.  Yes,  sir. 

Cross-int.  4.  What  were  you  doing  during  the  day  up  to  3  o'clock  p.  m.  ?^-A.  Sui)er- 
vising  the  election;  watching  to  see  that  there  was  nothing  wrong,  deciding  disputes 
if  occasion  required  it ;  having  an  eye  to  the  sticcess  of  the  Republican  ticket,  in  a  fair 
way. 

Cross-int.  5.  Did  you  discover  or  suspect,  or  have  any  reason  to  suspect,  that  there 
was  any  Jinfairness  in  the  election  iuthat  ward,  or  any  tampering  with  the  ballots  or 
miscounting  of  the  same,  intentionally  or  otherwise? — A.  None  at  all  whatever.  It 
was  one  of  the  fairest  elections  I  ever  saw  ;  in  fact,  the  only  dispute  we  had  all  day 
long  was  a  case  of  dereliction  of  duty  on  part  of  the  clerk  or  register  of  voters  of  the 
city  in  not  putting  a  man's  name  nu  the  list  who  had  paid  his  taxes;  there  was  one 
other  case,  which  was  corrected  afterward,  Fitzgerald's  case. 

Cross-int.  6.  Who  first  counted  the  votes,  and  into  what  parcels  were  they  made 
up? — A.  The  votes  were  first  counted  by  the  warden  and  clerk,  and  made  up  int» 
parcels  of  one  hundred  ;  the  odd  on>-8  being  left,  fractions  of  a  hundred. 

Cross-int.  7.  When  did  you  as  supervisors  begin  to  canvass  and  couut  the  ballots, 
and  how  did  you  conduct  your  examination  and  count,  and  how  did  you  dispose  of  the 
ballots  when  counted  ? — A.  I  couldn't  tell  what  hour  we  began;  should  think  itsome- 
wht're  in  the  neighborhood  of  three  o'clock;  that  is,  on  fair  recollection;  couldn't  be 
positive ;  it  was  in  the  neighborhood  of  that  hour ;  after  the  warden  and  clerk  had 
counted  the  ballots  they  put  the  straight  ballots  into  packages  of  one  hundred  each, 
and  the  scratched  tickets  into  like  packages  by  themselves,  and  then  we  went  over 
each  package  to  see  if  they  were  correct  as  to  member  of  Congress,  to  see  whether  they 
were  iu  packages  of  one  hundred  or  all  straight  one  way  or  the  other  ;  when  counted 
we  tied  them  up  in  bundles  of  one  hundred  and  the  fractions  by  themselves,  and  tied 
them  with  twine,  and  put  them  into  the  box. 

Cross-int.  8.  Did  the  supervisors  or  either  of  you  discover  some  errors  iu  the  count 
made  by  the  warden  and  clerk? — A.  We  found  the  packages  each  containing  a  hun- 
dred, and  all  straight  as  warden  and  clerk  had  counted  them,  and  the  same  as  to  the 
fraction  in  every  instance.  We  had  a  warden  who  was  very  particular  how  we  did 
the  work. 

Cross-int.  9.  Then  your  count  was  exactly  in  accordance  with  that  of  the  warden 
and  clerk,  was  it  ? — A.  Yes,  sir. 


204  DIGEST    OF    ELECTION    CASES. 

Deposition  of  Thomas  McC.  Babson. 

Int.  3.  Were  you  present  at  the  polls  in  ward  .16,  on  the  7th  of  November,  1876  f — 

A.  I  was  there  all  day,  from  before  the  polls  were  opened  until  after  vote  was  declared^ 
except  half  an  hour. 

Int.  4.  As  far  as  you  could  see,  did  or  did  not  the  ward  officers  attend  carefully  to 
their  duties  in  receiviu}?  and  counting  the  ballots  ? — A.  They  did. 

Int.  5.  Of  what  political  party  was  the  warden,  and  of  what  i)olitical  party  were 
the  inspectors? — A.  Warden  was  Repxiblican ;  the  inspectors  belonged  to  both  parties — 
gome  to  one  and  some  to  the  other.  I  think  there  were  three  Republican  inspectors 
and  two  Democrats. 

Int.  6.  Was  or  was  not  the  warden  careful  and  accurate  in  the  discharge  of  his 
duties? — A.  He  was  vei-y  careful.  I  think  he  was  very  partial  to  his  own  political 
party  in  the  discharge  of  his  duties  that  day.  I  mean  by  that  as  regards  receiving 
Totesi 

Int.  7.  Do  you  know  of  any  reason  to  believe  that  the  returns  of  the  ward  officers 
were  in  any  respect  erroneous,  or  have  you  ever  heard  that  there  was  any  error  made 
by  them? — A.  I  have  no  reason  to  believe  them  erroneous.  I  have  heard  of  no  error, 
except  that  I  have  heard  the  counsel  for  Mr.  Dean  say,  within  a  day  or  two,  that  the 
claim  was  made  that  there  was  an  error  in  the  vote.  I  don't  know  whether  I  could 
pay  it  was  made  by  Mr.  Field  or  not.  What  I  heard  was  that  the  recount  of  the  board 
of  aldermen  disagreed  with  the  count  of  the  ward  officers. 

Cro^s-int.  9.  Was  any  question  as  to  the  receiving  of  a  vote  raised  during  the  day 
in  more  than  two  cases  ? — A.  Yes ;  in  three  at  least,  to  my  knowledge. 

Cross-int.  10.  Can  you  name  the  three  cases? — A.  There  was  one  case  where  by  mis- 
take a  man's  name  had  been  checked  but  not  voting;  two  cases,  I  think,  where  a  man's 
name  was  not  on  the  ward-list,  who  claiuied  to  have  been  I'egistered.  Fitzgerald'* 
•ase  was  the  first-named  case  ;  he  was  allowed  to  vote. 

Croes-int.  11.  Are  you  aware  of  a  discrepancy  between  the  gross  number  of  ballots 
cast  in  ward  16  at  that  election,  as  the  same  was  announced  or  said  to  be  announced  by 
the  warden,  and  the  number  of  ballots  as  ascertained  by  adding  the  numbers  of  votes 
cast  for  all  the  several  candidates  for  the  several  offices  ? — A.  I  have  heard  within  a 
few  days  about  there  being  some  discrepancy.  I  had  the  vote  as  it  was  announced, 
but  have  lost  it ;  the  vote  was  very  large ;  all  but  about  thirty  of  those  registered  were 
said  to  have  voted.     I  do  not  recollect  the  exact  number. 

Cross-int.  12.  If  you  had  found  such  discrepancy  of  twenty  votes  would  you  con- 
sider it  as  in  any  way  affecting  the  question  of  the  propriety  of  a  recount? — A.  I 
should  have  before  having  heard  so  many  election  cases  this  winter;  now  I  shouldn't 
expect  any  precise  agreement  as  to  the  votes  for  any  candidate  on  the  ticket  and  th& 
whole  number  of  votes  cast.  I  shouldn't  suppose  the  number  of  votes  for  two  oppos- 
ing candidates  would  add  up  the  same  as  whole  number  of  votes  cast  in  the  ward. 

Cross-int.  13.  If  the  ward  officers  announced  that  there  were  1,537  ballots  thrown, 
and  if  all  tlie  ballots  for  all  the  candidates  for  member  of  Congress  were  returned  as 
1,517,  and  all  the  ballots  for  all  the  candidates  for  governor  were  returned  as  1,527, 
would  yon  not  see  in  these  facts  some  reason  for  distrusting  the  count,  and  for  grant- 
ing a  recount  if  asked  for? — A.  No;  there  was  much  dissatisfaction  with  Mr.  Fielil 
among  the  members  of  the.  Republican  Battalion  in  the  ward,  and  I  expected  that 
many  of  the  members  of  that  organization  woxild  vote  for  the  Republican  candidate 
for  governor  and  would  not  vote  for  Field. 

Cross-int.  14.  If  the  ward  officers  announced  that  there  were  1,537  ballots  thrown, 
and  if  all  the  ballots  for  all  the  candidates  for  member  of  Congress  were  returned  as 
1,527,  and  all  the  ballots  for  all  the  candidates  for  governor  were  returned  as  1,517, 
would  you  not  see  in  those  facts  some  reason  for  distrusting  the  count  and  for  grant- 
ing a  recount  if  asked  for? — A.  I  should  not.  The  only  thing  that  would  have  sur- 
prised me,  would  cause  me  to  doubt  its  correctness,  would  have  been  to  have  found 
the  total  Presidential  votes  to  have  fallen  materially  short  of  1,537. 

Deposition  of  Charles  B.  Hunting. 

Charlbb  B.  Hunting,  a  witness  for  Walbridge  A.  Field,  the  incumbent,  being  first 
duly  sworn,  in  answer  to  interrogatories  proposed  by  J.  Lewis  Stackpole,  Esq.,  of 
counsel  for  the  incumbent,  testified  as  follows,  viz : 

Interrogatory  1.  State  your  name,  age,  residence,  and  occupation. — Answer.  Charles 

B.  Hunting;  forty-one;  Boston,  Mass. ;  ward  10;  clothing  dealer. 

Int.  2.  Were  you  acting  as  clerk  of  ward  10  at  the  election  of  November  7,  1876  ?— 
A.  Yes,  sir. 

Int.  7.  State  who  acted  as  United  States  supervisoi-s  in  said  ward  at  said  election. — 
A.  John  F.  Dally  and  Abraham  J.  Lamb. 

Int.  8.  State  whether  said  supervJKors  i>ersonally  scrutinized,  canvassed,  and  counte* 


DEAN   VS.    FIELD.  205 

the  ballots  for  Representative  to  Congress  cast  in  said  ward  at  said  election. — A. 
Tbey  couuted  theio;  cau't  tell  how  carefully  they  scrutinized  tliein. 

Cross-examination  resumed : 

Kecross-int.  6.  You  counted  all  the  ballots  in  your  ward  as  carefully  as  possible,  did 
you  not?  -  A.  Yes,  sir. 

Recross-int.  7.  Did  you  not  believe,  after  the  count  was  finished,  that  the  returns 
made  by  you  to  the  city  hall  represented  the  true  number  of  ballots  cast  in  your  ward 
for  Mr.  Dean  and  Mr.  Field,  respectively? — A.  I  did. 

Recross-int.  8.  Don't  you  now  believe  the  count  made  by  you  is  the  true  count  of 
the  vot»s  cast  for  Mr.  Dean  and  Mr.  Field,  respectively ? — A.  I  believed  it  then,  and 
believe  it  now. 

Deposition  of  Patrick  M.  Denon. 

Int.  2.  What  office,  if  any,  did  yon  hold  in  ward  16  on  November  7y  1876 T — ^A.  In- 
spector. 

Int.  3.  Were  you  present  at  the  polls  during  the  day,  and  did  you  attend  to  your 
duties  as  inspector? — A.  Yes,  sir;  I  was  there  from  the  time  they  opened  until  th»y 
olosed,  and  everythiug  was  counted  and  sealed  and  delivered  to  the  man  to  be  carried 
to  city  hall. 

Int.  4.  How  many  of  the  ward  officers  in  ward  16  were  Republicans  and  how  many 
Democrats  ? — A.  Two  inspectors  aud  clerk  were  Democrats,  and  the  warden  and  four 
inspectors  were  Republicans.     I  think  there  were  four,  two  appointed  and  two  chosen. 

Int.  9.  How  was  the  election  conducted  on  November  7,  1876,  by  the  ward  officers  in 
said  ward  T — A.  Very  straight,  honorable,  and  correct,  as  far  as  I  could  see ;  each  party 
watched  each  other  very  closely,  and  I  haven't  heard  of  any  dishonest  action  on 
either  side. 

Int.  10.  Have  you  ever  heard  of  any  error  having  been  made  in  that  ward  in  the 
count  of  votes  for  any  candidate  voted  for? — A.  I  heard  a  rumor  since  election  day  of 
an  error  being  made.  I  understood  that  Mr.  Dean's  vote  didn't  correspond  with  the 
check-list  and  ballots  in  the  ward-room  after  being  couuted  by  the  aldermen;  that  it 
wasn't  correct  as  we  made  it  out  at  the  time. 

Int.  11.  Before  the  recount  was  made  by  the  aldermen,  did  you  hear  or  know  of  any 
error  being  made  in  the  count  of  votes  in  ward  16? — A.  After  they  had  counted  the 
ballots  ami  the  inspectors  the  check-list,  there  was  a  variation  of  one  or  two  votes  be- 
tween them,  and  we  counted  the  ballots  two  or  three  times — I  did  myself,  and  others — 
to  see  if  we  could  discover  the  error,  and  afterwards  the  clerk  and  warden  told  us  they 
had  discovered  the  error  aud  corrected  it.  This  w^as  after  the  polls  were  closed  and 
before  they  bad  made  up  their  accounts. 

Int.  12.  What  was  the  whole  number  of  votes  cast  in  ward  16  on  November  7, 
1876  ? — A.   Fifteen  hundred  aud  thirty-seven,  as  I  got  it. 

let.  13.  How  did  you  obtain  that  number?  State  all  the  circumstances — A.  After 
the  polls  were  closed,  as  the  clerk  and  warden  were  filling  out  the  votes  for  different 
candidates,  I  took  this  slip  of  paper  and  copied  the  different  candidates'  votes  on  it  as 
I  got  it  from  the  warden  and  clerk  as  they  were  putting  them  down  on  the  list  to  be 
retuined  to  city  hall.     I  mean  whole  number  of  ballots  cast  in  the  ward. 

Int.  14.  Whether  or  not  there  Avere  many  "stickers"  or  "pasters"  used  on  the  day 
of  election  ? — A.  Something  I  noticed  unusual  on  that  day  ;  sojmany  cut  off  the  top  of 
the  Republican  ticket,  containing  the  President  and  Vice-President  and  electors,  and 
pinned  it  over  the  top  of  Democratic  ticket. 

Cross-examination  by  William  G.  Russell,  Esq.,  of  counsel  for  the  incumbent 

Cross-int.  1.  Will  you  produce  and  annex  to  this  deposition  the  memorandum  from 

which  you  have  testified  to  the  whole  number  of  ballots  cast  in  ward  16  on  November 

7,  1876  ? — A.  I  produce  it ;  that  is  as  I  got  it  at  the  time.     (The  same  is  annexed, 

marked  "  W.  W.— 1.") 

Cross-int.  2.  In  whose  handwriting  is  it  and  when  was  it  made  ? — A.  In  my  own;  it 

was  made  after  the  polls  closed,  whUe  they  were  filling  out  the  list  to  send  to  city  hall. 

Cross-int.  3.  From  whom  did  yon  derive  the  number  of  votes  against  each  name  on 

thememoraudum? — A.  Part  of  the  time  Mr.  Wetherbee,  the  warden,  would  tell  me, 

and  part  Mr.  Hunting,  the  clerk,  just  as  I  happened  to  ask  either. 

Exhibit  W.  W.— 1. 

r  Madden 872 

rr,-!  ,„„  j  Babson 855 

T.lden.<^y^j^^ 607 

iFilkins 573 

Senatorial  Gen.  Courts: 

John  Noble 1, 514 


206  DIGEST    OF    ELECTION    CASES. 

Whole  number  of  votes  thrown 1,537 

Baker 41 

Counselor 

Packard 602 

Toiand ^(>2 

Shitleff - ^46 

Mailing 975 

Rice  i^93 

Adams 883 

Tilden *>9 

Hayes 625 

Field - 385 

Dean - S96 

It  will  be  seeu  by  the  foregoing  evidence  in  relation  to  ward  16  that 
the  ward  officially  returned  for  AValbridge  A.  Field  621  votes;  for  Ben- 
jamin Dean  896.  The  sux)ervisoi's  returns  show  the  same,  except  that 
Mr.  Dean  was  given  one  more  vote.  This  is  explained  by  the  evidence 
and  is  a  strong  proof  of  the  correctness  of  the  count.  In  this  ward  the 
aldermanic  count  was  as  follows : 

Benjamin  Dean  889,  or  7  votes  less  than  the  ward  returns;  Walbridge 
A.  Field,  625,  or  4  votes  more  than  the  ward  returns;  making  a  ditfer- 
ence  of  11  against  Mr.  Dean.  As  the  aldermanic  count  elects  Mr.  Field 
by  only  5  majority  as  a  whole,  if  it  be  proven  that  the  aldermanic  count 
is  incorrect  as  to  ward  16,  and  that  the  ward  count  is  the  true  result  of 
the  votes  cast,  then  the  contestant  in  this  case  is  elected  by  a  majority 
of  6  votes.  The  United  States  supervisors  must  be  regarded  as  either 
official  canvassers  with  authority  to  make  a  count  binding  upon  this 
House,  or  they  must  be  regarded  as  official  witnesses  placed  in  the  i)Osi- 
tion  to  obtain  all  the  facts,  or,  as  the  statute  says,  so  situated  that  all  the 
facts  may  become  known  through  them,  "  and  to  the  end  that  such  can- 
didate for  the  office  of  Kepresentative  in  Congress  may  obtain  the  bene- 
fit of  every  vote  for  him  cast."  As  official  witnesses,  their  deposition* 
are  in  the  record.  They  were  selected  by  each  of  the  parties  to  the  con- 
test, or  by  their  respective  political  friends.  It  is  presumed  that  they 
were,  in  view  of  the  importance  of  this  election,  selected  with  a  special 
reference  to  their  fitness  for  the  duties  they  were  required  by  law  to 
perform. 

Having  been  designated  by  the  contestant  and  the  contestee  them- 
selves to  act  as  such  witnesses,  through  the  appointment  of  the  circuit 
court  of  the  United  States,  both  contestant  and  contestee  are  estopped 
from  impeaching  the  witnesses  or  discrediting  their  evidence.  The  depo- 
sitions of  these  supervisors  have  been  taken  under  the  statute  in  the 
election  contest.  They  were  subjected  to  cross-examination  by  counsel; 
their  evidence  as  to  the  truth  of  the  returns  made  by  the  ward  officers 
is  of  the  very  highest  character  of  evidence  known  to  the  law.  They 
do  not  testify  on  information  or  belief,  but  from  personal  knowledge  of 
the  facts  about  which  their  testimony  was  taken.  They  were  legal  wit- 
nesses. They  were  present  for  the  very  purpose  of  learning  the  very 
fact  in  issue  in  this  case,  namely,  whether  the  contestant  or  the  con- 
testee received  a  given  number  of  votes  in  the  ward  where  they  were 
required  to  scrutinize  and  count  the  votes  by  law.  They  did  so  scruti- 
nize the  ballots  and  count  the  votes,  not  only  under  the  solemnity  of 
their  oaths  at  the  time,  but  in  the  contest  where  they  are  subjected  to 
cross-examination  by  the  contestee's  attorneys  they  reiterate  the  truth 
of  their  former  statements,  and  upon  the  information  and  knowledge  of 
the  facts  which  they  then  obtained.  This  evidence  is  not  contradicted. 
It  is  unimpeached.  It  is  absolutely  conclusive  as  to  the  facts  stated 
by  them.    It  may  be  stated  that  the  aldermen  also  testified  that  their 


DEAN   VS.    FIELD.  207 

count  was  correct.  This  is  true ;  but  the  inspectors  of  the  ward  and 
the  clerk  also  testified  to  the  truth  of  the  ward  returns,  and  we  have  a 
right  to  set  oflf  two  inspectors  and  a  clerk  who  counted  the  ward  re- 
turns, and  their  oaths,  against  three  aldermen  who  made  the  aldermanic 
count  and  their  oaths.  Then  we  have  the  preponderance  of  evidence 
in  favor  of  the  truth  of  the  ward  returns.  Not  only  did  the  supervisors 
testify  to  the  fairness  of  this  election,  but  Mr.  Babsou,  a  gentleman 'of 
intelligence  and  a  candidate  for  the  legislature,  who  was  present  most 
of  the  time,  also  testifies  to  the  fairness  of  the  election  and  to  the 
evidence  of  the  correctness  of  this  count  in  ward  16  by  the  inspectors 
and  supervisors.  The  marshal,  who  was  present,  also  testifies  that 
everything  was  fairly  conducted,  and  the  counts  were  made  by  the  super- 
visors, as  they  have  testified  themselves.  In  view  of  the  evidence  in  this 
case  as  to  the  truth  of  the  count  by  the  ward  officers  and  the  super- 
visors, can  there  be  any  doubt  in  the  mind  of  anyone  as  to  the  truth  of  the 
returns  made  by  the  ward  officers  of  ward  16 1  It  has  been  proven  that 
ward  ]  6  must  be  counted  as  returned  by  the  ward  officers.  If  we  allow 
the  aldermanic  count  to  stand  as  to  the  other  wards,  this  change  elects 
the  contestant  by  a  majority  of  6  votes. 

Let  us  now  consider  the  evidence  regarding  the  ward  count  in  ward  18. 

Ward  18 — Ward  Officers'  Return. 

W.  W.— L. 
City  of  Boston: 

At  a  legal  meeting  of  the  inhabitants  of  ward  No.  18  in  the  city  of  Boston,  in  the 
connty  of  Suffolk,  and  Commonwealth  of  Massachusetts,  qualified  as  the  law  directs^ 
liolden  in  said  ward  on  Tuesday,  the  seventh  day  of  November,  in  tbe  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-six,  for  the  purjiose  of  giving  in  their 
votes  for  one  able  and  discreet  person,  being  an  inhabitant  of  district  No.  3,  to  repre- 
sent saitl  district  in  the  next  Congress  of  the  United  States,  the  whole  number  of  votes 
given  in,  as  aforesaid,  were  sorted,  counted,  recorded,  and  declaration  thereof  made, 
as  by  the  constitution  and  laws  are  directed,  and  were  for  the  following  persons : 
Walbridge  A.  Field  had  fourteen  hundred  and  ten. 
Benjamin  Dean  had  iive  hundred  and  seventy-nine. 

For  member  of  Congress,  fourth  district,  Walbridge  A.  Field  had  twenty-five.j 
In  testimony  whereof  the  warden,  inspectors  of  elections,  and  clerk  of  said  ward 
have  hereunto  set  their  hands  the  seventh  day  of  November,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-six. 

B.  E.  COLE,  Warden. 
CHARLES  E.  FOX, 
ALBERT  C.  POND, 
W.  H.  CHIPMAN, 
WM.  H.  THOMAS, 

Inspectors. 
JOHN  ALBREE,  Clerk. 

A  true  copy  of  original  return  duly  filed  in  city  clerk's  office. 
Attest: 

S.  F.  McCLEARY, 

City  Clerk. 


Ward  16. — Supervisors  Return. 
18.— H.  L.  H. 

This  is  to  certify  that  we,  the  subscribers,  supervisors  of  the  vote  of  ward  eighteen, 
city  of  Boston,  have  examined  and  counted  the  votes  cast  for  Representative  for  mem- 
ber of  Congress  of  the  third  district,  with  the  following  result : 

Whole  number  of  votes,  1,989. 

For  Walbridge  A.  Field,  1,410. 

For  Benjamin  Dean,  579. 


208  DIGEST    OF    ELECTION   CASES. 

Twenty-five  additional  votes  cast  for  Walbridge  A.  Field,  of  fourth  district,  not 
«onnted ;  left  for  decision  of  Committee  on  Elections. 
Respectfully  submitted. 

WILLIAM  SWINSON. 
DANIEL  P.  SULLIVAN. 
To  Hon.  Henry  L.  Hallett, 

Chief  Supervisor  of  Elections  for  District  of  Massachusetts. 

Boston,  November  7,  1876. 

The  following  is  the  oral  testimony  regarding  the  counting  of  ballota 
in  ward  18 : 

Deposition  of  William  Sicinson. 

Interrogatory  1.  Please  state  your  name,  age,  residence,  and  occupation. — Answer. 
William  Swins'on  ;  fifty-nine;  76  Rutland  street,  ward  18;  merchant;  am  out  of  busi- 
ness now. 

Int.  2.  What  oflBce,  if  any,  did  you  hold  on  November  7,  1876  ? — A.  United  States 
snpers'isor  in  ward  18,  to  represent  the  Republican  party.  I  had  lived  in  the  ward 
thirty-five  years ;  have  been  warden  and  inspector  when  it  was  old  ward  11 ;  have  not 
been  much  of  a  politician  since  the  old  Whig  party. 

Int.  3.  Did  you  attend  at  the  polls  on  that  day,  November  7, 1876,  and  discharge  your 
duties  ? — A.  I  did. 

Int.  4.  Did  you  carefully  count  the  ballots  cast  for  Representative  to  Congress  in  that 
ward  T — A.  I  did. 

Int.  5.  Did  Mr.  Sullivan,  the  other  United  States  supervisor,  also  carefully  count 
the  same  ballots  T — A.  I  think  he  counted  a  good  part,  or  was  there  present  most  of 
the  time.  I  can't  say  whethw  he  personally  counted  all  the  votes ;  I  have  an  impres- 
sion that  he  did. 

Int.  6.  What  ward  officers  counted  the  ballots  for  member  of  Congress? — A.  The 
warden ;  I  think  only  one  person  at  a  time,  with  the  assistance  of  the  clerk ;  they  kept 
a  very  correct  method,  a  regular  debit  and  credit  account,  so  that  there  was  no  chanee 
for  mistakes.  One  inspector  also  counted,  and  as  they  were  counted  they  were  passed, 
to  our  table  and  we  counted.  The  whole  counting  was  done  by  two  persons  at  a  time ; 
the  others  were  attending  at  the  boxes. 

Int.  7.  Did  the  counts  made  by  you  and  Mr.  Sullivan  agree  with  that  made  by  tho 
ward  officers  t — A.  They  did. 

Int.  8.  How  long  have  the  warden  and  clerk  been  ward  officers  in  ward  18  ? — ^A. 
That  I  cannot  state  positively ;  I  think  three  years. 

Int.  9.  Were  they  or  not  persons  fitted  for  performing  the  duties  required  of  a  warden 
and  a  clerk  t — A.  I  think  they  were ;  have  no  doubt  of  it. 

Int.  10.  Have  you  or  not  ever  heard  of  any  error  or  mistakes  being  made  by  them, 
or  by  the  supervisors,  on  November  7, 1876  T — A.  No ;  I  have  not. 

Deposition  of  Daniel  P.  Sullivan. 

Daniel  P.  Sullivan,  a  witness  on  behalf  of  Benjamin  Dean,  contestant,  being  first 
duly  sworn,  in  answer  to  interrogatories  proposed  by  S.  A.  B.  Abbott,  esq.,  of  counsel 
for  the  contestant,  testified  as  follows,  viz : 

Interrogatory  1.  Please  give  your  name,  age,  residence,  and  occupation. — Answer. 
Daniel  P.  SuUivau ;  twenty-seven ;  ward  18,  Northampton  street,  Boston,  Mass. ; 
wood-carver. 

Int.  2.  What  office  did  you  bold  in  ward  18  on  the  7th  day  of  November,  lb76f — 
A.  United  States  supervisor,  on  behalf  of  Democratic  party. 

Int.  3.  Will  you  describe  as  fully  as  you  can  the  manner  in  which  the  votes  cast  in. 
that  ward  for  member  of  Congress  on  November  7,  1876,  were  counted  by  you  and  the 
other  officers  iu  that  ward  T — A.  The  system  was,  the  warden,  clerk,  and  one  of  the 
inspectors  did  the  counting.  The  warden  and  clerk  were  present  at  the  counting  of 
each  lot  taken  out,  and  the  inspector  was  absent  when  one  lot  was  being  counted. 
After  they  counted  all  the  ballots  for  all  the  candidates  on  the  tickets  they  tied  the 
ballots  together ;  they  had  the  Republican  ballots  in  one  lot  and  the  Democratic  in 
another  and  the  Prohibition  in  another,  and  they  tied  a  string  around  each  bundle 
and  marked  on  each  bundle,  on  a  ballot,  the  vote  for  Mr.  Dean  and  for  Mr.  Field ;  then 
they  were  handed  to  the  supervisors,  Mr.  Swinson  and  myself.  Mr.  Swinson  would 
count  the  ballots  and  I  would  watch  him,  and  after  he  got  through  he  would  hand 
them  over  to  me  and  he  would  watch  me  counting.  In  some  cases  I  counted  them 
over  two  or  three  different  times  to  see  if  the  figures  compared  with  the  ward  officers' 
count,  and  each  time  I  found  them  to  be  correct. 


DEAN    VS.    FIELD.  209 

Int.  4.  How  carefully  did  you  and  Mr.  Swiusou  count  the  ballots,  and  how  certain 
are  you  of  tlie  accuracy  of  the  returns  made  by  you  and  Mr.  Swinson  as  supervisors, 
^iid  by  the  ward  otliccrs? — A.  lu.  every  case,  as  I  stated  before,  Mr.  Swinson  wouhl 
€onut  and  I  wouUl  count,  an<l  sometimes  I  wouhl  sjf(i  over  them  two  or  three  times  to 
see  if  there  was  a  single  error,  and  tivery  time  they  would  tally  with  the  ward  officers'. 
I  am  (rertain  if  there  was  any  error  in  the  count,  or  any  tampering  with  the  votes,  it 
must  have  lieen  doiui  by  other  parties  than  the  wanl  officers  or  the  supervisors. 

Tut.  5.  Of  what  political  party  were  the  ward  officers  of  ward  18,  and  how  carefully 
and  accuia*^ely  did  thej'  count  the  ballots  ? — A.  Mr.  Thomas,  one  of  the  inspectors, 
calls  himself  a  Democrat.  A  gentleman  named  Babcock,  who  was  one  of  the  inspec- 
tors, is  a  sound  Democrat.  There  was  another  one,  uauied  Fox,  who  talked  a  little 
like  a  Democrat.  I  don't  know  what  his  creed  was.  He  talked  that  Mr.  Field  was 
not  entitled  to  those  twenty-live  votes  for  fourth  «listrict.  Neither  of  these  had  any- 
thing to  do  with  counting  the  ballots ;  they  merely  stood  at  the  check-list ;  the  others 
I  could  not  say  what  they  were  ;  I  sup])ose  they  were  Republicans.  I  noticed  they 
fought  ]»retty  well  for  Mr.  Field.  I  don't  know  how  carefully  they  counted;  I  know 
their  tally  always  agreed  with  Mr.  Swiuson's  and  myself.  I  should  say  they  were  as 
competent  a  set  of  ward  officers  as  I  ever  saw. 

Mr.  Thomas  says  (int.  5,  Record,  p.  75)  that  "the  warden  and  clerk 
of  ward  18  belonged  to  the  Kepnblican  party,"  that  "they  were  per- 
fectly competent,  reliable  persons,"  and  that  "they  very  carefully  dis- 
charged their  duties"  on  the  day  of  election. 

He  also  says  that  he  never  heard  of  any  mistake  being  made  in  that 
ward. 

Mr.  Dickinson,  the  chairman  of  Mr.  Field's  district  committee,  and  a 
voter  in  ward  18,  says  (Kecord,  p.  144)  that  he  never  knew  of  any 
mistake  being  made  by  the  ward  officers  other  than  that  supposed  to 
ha\'e  been  discovered  by  the  recount  made  by  the  aldermen,  and  that 
he  signed  a  petition  for  a  recount  because  he  ^^ believed  after  the  returns 
of  the  ward  officers  were  all  in  that  Mr.  Field  might  be  benefited  by  a 
recount,  and  certainly  kn«w  he  could  not  be  declared  elected  without  a 
recount."  His  experience  as  the  chairman  of  a  political  committee  had 
taught  him  that,  when  a  person  had  failed  of  an  election  upon  a  count 
ujade  by  sworn  officers  of  both  political  parties,  in  the  presence  of  the 
candidates  and  of  their  friends,  he  might  succeed  upon  a  recount  made 
by  three  aldermen,  sitting  with  closed  doors  and  excluding  the  officers 
cliarged  by  the  law  of  the  United  States  with  the  supervision  of  the 
count. 

Mr.  Alden  Avery  (Kecord,  p.  150),  who  distributed  ballots  bearing 
Mr.  Field's  name  all  day,  does  not  know  of  any  error  being  made  by  the 
ward  officers  of  ward  18  in  their  count. 

John  Albree,  the  clerk  of  ward  18,  called  by  the  returned  member, 
testifies  (Kecord,  j).  167)  as  to  the  regularity  of  the  proceedings  in  that 
ward,  aud  says  that  United  States  supervisors  "personally  scrutinized, 
canvassed,  and  counted  all  the  ballots  for  Representative  to  Congress 
cast  in  said  ward  at  said  election." 

This  last  witness  aud  Mr.  Cole,  the  warden,  were  examined  ex  parte 
by  the  returned  member  after  the  testimony  in  rebuttal  had  been  put 
in ;  but  even  then  not  one  word  is  elicited  from  either  of  them  to  show 
that  the  greatest  care  had  not  been  used  in  counting  the  ballots  in  the 
ward,  or  to  show  that  the  slightest  doubt  or  suspicion  had  ever  been 
entertained  by  any  i)erson  whatever  in  regard  to  the  accuracy  of  the 
first  count. 

In  these  two  wards,  then,  it  appears,  after  calling  all  the  persons  of 
both  political  i)arties  who  would  be  apt  to  know  of  an  error,  if  any  had 
beeu  made,  that  the  only  reason  which  can  be  alleged  for  doubting  the 
accuracy  of  the  original  counts  is  that  they  did  not  agree  with  the  alder- 
men's recount.  What  is  there,  then,  in  the  aldermen's  recount  which  is 
H.  Mis.  58 14 


210  DIGEST  OF  ELECTION  CASES. 

entitled  to  he  received  in  the  place  of  the  ward  returns?  It  has  been 
shown  that  this  recount  was  not  authorized  by  the  State  law,  as  inter- 
preted by  the  State  lej^islature;  it  has  been  shown  that  the  result  of  the 
recount  by  the  aldermen  has  never  been  legally  certified  to  the  city 
clerk,  that  none  of  the  proceedings  in  regard  to  it  were  in  confoi  mity 
with  the  provisions  of  the  law ,  and  that  it  must  stand  or  fall  upon  it» 
own  merits,  like  any  other  unauthorized  recount. 

From  this  evidence  it  will  be  seen  that  the  ward  officers  gave,  in  ward 
18,  Walbridge  A.  Field  1,410  votes,  and  Benjamin  Dean  579  votes» 
The  supervisors'  return  is  exactly  the  same.  In  this  ward,  as  in  the 
other,  the  two  supervisors,  Mr.  Swinsou  and  Mr.  Sullivan,  ti  stify  that 
they  counted  the  votes  and  scrutinized  the  ballots  carefully,  with  the 
pipsult  indicated.  There  is  no  allegation  on  the  part  of  any  one  that 
there  was  any  fraud  practiced  at  this  ward,  and  there  was  no  dispute 
even  as  to  the  correctness  of  the  count,  except  as  to  the  25  votes  for 
Walbridge  A.  Field,  fourth  district.  It  appears  by  the  testimony  also 
of  the  clerk  of  this  ward  that  the  United  States  supervisors  did  person- 
ally scrutinize,  canvass,  and  count  the  ballots  for  Representative  in  Con- 
gress cast  in  said  ward.  The  supervisors  so  testify  themselves,  and  ad- 
here to  the  truth  of  their  count.  Viewing  their  evidence,  then,  simply 
in  the  light  of  that  given  bj'  official  witnesses,  it  has  more  validity  even 
in  that  view  than  their  official  return  would  have  ;  for,  as  an  official  re- 
turn, we  might  go  behind  that  and  show  it  to  be  untrue,  but,  as  ofticial 
evidence  given  in  the  contest  by  witnesses  of  acknowledged  integrity 
and  unimpeached  character,  and  undisputed  by  any  other  evidence  taken 
in  the  contest,  we  Jire  bound  to  believe  and  accept  as  conclusively  proven 
their  statements. 

The  foregoing  evidence  taken  in  the  contest  clearly  establishes  the 
truth  of  the  ward  returns  in  wards  16  and  18.  But  there  is  other  evi- 
dence in  the  record  tending  to  prove  the  same  facts,  and  to  this  we  may 
also  direct  attention.  The  law  places  the  burden  of  proof  upon  the 
contestee  to  show  that  the  ballots  have  not  been  tami>ered  with  between 
the  ward  counts  and  the  recount  by  the  aldermen.  This  has  not  been 
done.  On  the  contrary,  in  ward  16  there  was  opportunity  to  tamper 
with  the  ballots  in  the  ward-room  after  they  were  counted  and  before 
they  were  sealed. 

C.  B.  Hunting,  on  page  165  of  the  record,  testifies  as  follows : 

Cross-int.  1.  Wbat  was  done  with  the  ballots  from  time  to  time  during  the  day  after 
they  were  counted  f — A.  They  were  laid  upon  the  table. 

Croes-iut.  '^.  When  were  they  tirst  put  into  the  envelope  ? — A.  In  the  afternoon  ;  not 
all  of  them;  we  would  roll  them  up  in  hundreds,  and  in  the  afternoon  we  rolled  up 
aonie  of  the  piles  together,  to  get  them  out  of  the  way,  put  a  string  around  them,  and 
put  them  in  the  box,  which  sat  behind  the  table;  in  the  original  box  that  was  sent 
up  for  that  purpose ;  same  box  they  are  in  now.  Dr.  Weatherbee,  the  warden,  and  I 
sat  together  at  the  table,  and  had  charge  of  the  ballots,  I  can't  tell  exactly  whether 
they  were  laid  on  the  window-sill  or  in  the  box,  which  sat  there  with  cover  open ;  the 
•window-sill  and  box  were  behind  us  and  the  table  in  front  of  us,  and  part  of  the  votes 
tied  up  in  hundreds  were  put  on  the  window-sill,  the  window  being  closed,  after  they 
had  been  counted. 

Cro88-int.  3.  Who  rolled  the  ballots  up  in  hundreds? — A.  I  tied  them  up,  and  three 
or  four  counted  them,  and  they  wotihl  mark  their  names  on  the  back  of  them,  certify- 
ing they  were  correct. 

Crobs-int.  4.  You  have  stated,  in  answer  to  interrogatory  3,  that  the  facts  stated  in 
your  certificate  were  true:  do  yon  mean  by  that  to  say  anything  more  than  that  yon 
supposed  the  facts  were  true  at  the  time  you  made  the  certificate,  and  that  you  put 
into  the  box  what  you  8U])posetl  were  all  the  ballots  cast  in  ward  16? — A,  No,  only 
what  I  supposed  to  be  true  at  the  time. 

Cross-int.  f>.  All  yon  mean  to  say,  then,  is  that  you  put  into  the  box  the  ballots  you 
found  at  the  end  of  the  day  in  the  place  where  you  had  from  time  to  time  juit  the 
ballots  which  had  been  counte<l  ? — A.  Yes,  sir. 


DEAN    \*.    FIELD.  211 

Mr.  Biibsou,  ou  pages  72  and  To  of  the  record,  testifies  that  not  only 
the  chief  marshal  but  the  other  marshals  were  behind  the  rails  as  much 
as  an  hour  before  the  result  was  declared  and  after  the  counting  was 
completed.     His  testimony  is  as  follows: 

Croesint.  4.  Where  were  the  other  luarshals  during  the  day  ? — A.  I  do  not  know  all 
©f  them ;  thost-  whom  I  do  know  were  in  the  ward-room.  I  do  not  think  any  of  them, 
with  the  exception  of  Mr.  Wilkins,  were  behind  the  rails  until  the  votes  were  counted, 
when  I  think  some  of  them  were. 

Cro88-int.  ^.  When  was  that  ? — A.  From  shortly  before  the  polls  closed  until  the  vote 
was  declared,  which,  I  should  say.  wjis  about  half  past  five;  polls  closed  at  half  past 
lour; 

It  is  Certain  that  the  ballots  had  become  changed  in  the  same  way 
after  they  were  counted  by  the  ward  oflScers.  The  ward  oflBcers  return 
in  words  at  length  one  ballot  cast  in  ward  21  for  Samuel  D.  Smith  for 
member  in  Congress.  There  can  be  no  doubt  but  that  this  ballot  was 
cast  and  counted  in  said  ward;  but  the  aldermen's  committee  found  no 
such  ballot.  What  had  become  of  it*.  The  same  is  true  of  a  ballot  for 
A.  Fieltl  in  ward  19.  What  had  become  of  that?  The  aldermen  found 
oi:e  for  Leoi)old  Morse  and  two  for  Kufus  S.  Frost  in  ward  10,  and  one 
for  Kufus  S.  Frost  in  ward  18.  Also  one  for  Francis  M.  Weld  in  ward 
20,  and  one  for  Wm.  A.  Field  in  ward  Hi.  How  came  they  theret  On 
pages  137  and  loS  of  the  record  Mr.  Viles  testifies  to  a  box  containing 
envelopes  coming  open  while  it  was  being  handled  and  while  in  the  city 
•lerk's  custody.     One  interrogatory  and  answer  is  as  follows : 

Cross-int.  5.  As  far  as  you  can  tell  from  the  appearance  of  the  box  it  might  have 
Ibeen  opened  and  all  the  ballots  examined  after  it  had  be<^n  sealed  by  the  committee, 
■light  it  not? — A.  Yes. 

In  addition  to  this,  the  testimony  is  that  stickers  or  pasters  (that  is, 
the  names  of  the  candidates  printed  on  separate  pieces  of  paper)  were 
used  in  great  quantities  and  pasted  over  the  names  of  the  rival  Con- 
gressional candidates.  The  testimony  also  is  that  these  stickers  or  past- 
ers came  off  in  some  cases.  And  there  is  a  great  probability  that  some 
did  come  off  after  they  were  counted  in  the  ward-room  and  before  the 
«'Ounting  of  the  aldermanic  committee. 

Ou  pages  152-'3  of  the  record  Alderman  O'Brien  testifies  that  there 
were  a  few  loose  stickers  in  the  boxes  with  only  the  names  of  the  can 
didates  on  them,  the  oflBce  not  being  indicated,  but  the  names  did  not 
appear  to  be  the  names  of  the  contestant  or  contestee.  In  some  of  the 
wards  the  changes  by  the  coming  off  of  stickers  between  the  two  counts 
is  so  apparent  that  to  state  the  facts  is  to  prove  the  case.  In  ward  21 
the  ward  count  was : 

For  Benjamin  Dean 547 

For  Walhridjrc  A.  Field 1,331 

By  the  recount : 

For  Benjamin  Dean 545 

For  Wailirid^e  A.  Field 1,333 

By  which  Mr.  Dean  loses  two  votes  and  Mr.  Field  gains  two,  making 
a  change  of  four  votes  against  Dean.  This  can  only  be  explained  by 
the  falling  off'  of  two  stickers  having  Mr.  Dean's  name  upon  them,  which 
would  leave  the  ballots  to  be  counted  for  Mr.  Field. 

In  ward  24  the  ward  count  was: 

For  Benjamin  Dean C<y5 

For  Walbridge  A.  Field 1,361 

By  the  recount : 

For  Benjamin  Dean o93 

For  Walbridge  A.  Field 1,362 


212  DIGEST    OF    ELECTION    CASES. 

A  diflference  of  three  votes  against  Mr.  Dean.  It  is  probable  that 
^ne  of  these  pasters  came  ofi'  which  was  over  Mr.  Field's  name,  and  on 
■one  of  the  ballots  the  name  of  Mr.  Field  had  doubtless  been  erased 
before  the  paster  had  been  placed  over  the  name.  For  these  reasons 
the  ward  count  is  more  reliable  than  the  recount,  and  appears  to  be  a 
true  representation  of  the  ballots  actually  cast. 

Mr.  McCrary  (section  278  of  his  work  on  elections)  says : 

Before  the  ballots  should  be  allowed  in  evidence  to  overturn  the  official  count  and 
return,  it  should  appear  affirmatively  that  they  have  been  safely  kept  by  the  proper 
custodian  of  the  law,  that  they  have  not  been  exposed  to  the  public  or  handled 
by  unauthorized  persons,  and  that  no  opportunity  has  been  given  for  tampering  with 
them.  If  this  is  believed  to  be  a  rule  founded  upon  the  presumption  that  a  fraud  or 
a  crime  has  been  committed,  the  answer  is  that  the  rule  does  no  more  than  to  make 
t'hoice  between  two  presumptions  of  law,  which  in  this  instance  come  in  conflict  and 
cannot  both  prevail.  In  such  case  the  question  is,  which  is  the  stronger,  the  more 
reasonable,  and  the  safer  presumption  f  And  inasmuch  as  the  ballots  are  counted  by 
the  boanl  of  canvassers  immi'diately  upon  the  closing  of  the  polls,  and  generally 
before  there  has  been  an  opportunity  for  tampering,  and  when  it  cannot  be  known 
that  the  changing  of  a  few  votes  will  change  the  result,  and  in  most  cases  by  a  board 
composed  of  friends  of  each  of  the  competing  candidates,  it  is  believed  that  in  the  ab- 
sence of  all  proof,  in  case  of  a  conflict  between  the  tally-sheets  and  returns  on  one 
side,  and  the  ballots  as  they  are  found  to  be  at  some  period  after  the  election  is  over, 
and  alter  the  state  of  the  vote  as  returned  has  been  made  known,  on  the  other,  the 
correctness  of  the  original  official  canvass,  made  by  sworn  officers  at  the  time  of  the 
-election,  should  be  presumed. 

From  the  foregoing  authority  it  will  be  seen  that  in  order  to  sustaiu 
«.  recount  the  parties  seeking  the  benefit  of  it  must  prove  conclusively 
that  between  the  time  of  the  first  and  second  counts  there  was  no  op- 
l)ortunity  given  for  tampering  with  the  ballots.  It  is  not  in  this  case 
for  the  contestant  to  show  that  the  ballots  might  have  been  tampered 
with,  but  the  contestee,  who  relies  upon  the  recount,  must  establish 
afQrmatively  that  the  ballots  had  been  safely  kept,  and  that  they  had 
not  been  exposed  to  the  public  or  handled  by  unauthorized  persons. 
These  facts  do  not  appear  affirmatively  in  the  record,  but,  on  the  con- 
trary, the  proof  is  conclusive  that  the  ballots  were  so  placed  as  to  ren- 
der it  possible  for  them  to  be  handled  and  tampered  with,  and  it  is  fur- 
ther shown  by  the  evidence  that  by  the  use  of  pasters  it  was  not  only 
possible,  but  probable,  that  important  changes  were  made  in  the  ballots 
by  the  falling  off  of  these  pasters.  This  theory  of  the  case  may  be  as- 
sumed without  impeaching  the  integrity  of  the  aldermen  who  made  the 
recount,  for  they  not  only  counted  the  votes  under  their  official  respon- 
sibility, but  submitted  depositions  in  the  contest  to  the  effect  that  they 
had  counted  the  ballots  correctly  as  they  found  them.  We  may  assume 
their  count  to  be  true,  and  that  they  did  not  perjure  themselves  when 
they  swore  to  the  correctness  of  this  count,  by  considering  not  only  the 
possibility  as  to  the  ballots  being  tampered  with,  but  the  undisputed 
<?vidence  that  certain  ballots  were  cast  and  counted  by  the  ward  officers 
which  did  not  appear  in  the  count  made  by  the  aldermen. 

In  conclusion,  referring  to  the  count  of  the  ward  officers  and  aldermen 
it  appears  that  in  ward  18  Mr.  Dean  received  573  votes,  or  6  votes  less 
than  the  ward  returns,  and  Mr.  Field  1,413  votes,  or  3  more  than  the 
ward  returns,  making  a  difference  of  9  in  his  favor.  In  the  two  wards 
(16  and  18)  Mr.  Field  has  20  votes  in  his  favor  by  the  alderman ic  count 
But  by  the  evidence  taken  in  the  contest,  going  behind  all  the  returns, 
it  appears  that  the  aldermanic  count  is  not  the  true  result  of  the  election 
in  wards  16  and  18,  and  if  we  assume  the  validity  of  the  aldermanic 
■count,  except  where  it  is  disproved  in  the  contest,  we  must  give  Mr. 
Dean  the  benefit  of  the  evidence  in  these  two  wards.  We  shall  then 
have  as  the  result  in  the  district,  conceding  Mr.  Field  the  25  votes  cast 


DEAN    VS.    FIELD.  213 

for  "fourth  district,"  aud  conceding  for  the  sake  of  the  argument  the 
validity  of  the  aldermauic  count,  except  so  far  as  disproved  by  the  evi- 
dence— 

Votes. 

For  Benjamin  Dean 9, 328 

For  Walbvidge  A.  Field 9, 3ia 

leaving  a  majority  of  15  votes  for  Mr.  Dean.  Therefore,  if  this  election 
is  to  depend  upon  the  aldermen's  count,  except  so  far  as  di.sproved  by 
the  evidence  in  the  case  as  to  wards  10  and  18,  Mr.  Dean  is  elected  by 
^  15  majority;  but  if,  as  we  contend,  the  ward  returns,  sustained  by  the^ 
United  States  supervisors,  are  to  stand  as  the  count  provided  by  law, 
Mr.  Dean  is  also  elected  by  5  votes.  In  either  view  of  the  case  the 
contestant  is  elected.  Your  committee,  therefore,  recommend  the  adop- 
tion of  tlie  following  resolutions: 

Eesolved,  That  Walbridge  A.  Field  is  not  entitled  to  a  seat  in  thi& 
House  as  the  Kei^resentative  from  the  third  Congressional  district  of  the 
State  of  Massachusetts. 

Besolred,  That  Benjamin  Dean  is  entitled  to  a  seat  in  this  House  as 
the  liepresentative  from  the  third  Congressional  district  of  the  State 
of  Massachusetts. 

JOHN  T.  HARRIS. 

WILLIAM  M.  SPRINGER. 

THOS.  R.  COBB. 

E.  JNO.  ELLIS. 

JAC.  TURNEY. 

Without  at  this  time  assenting  to  all  the  propositions  made,  I  concur 
in  the  conclusion  reached. 

JERE  N.  WILLIAMS. 

Without  indorsing  the  argument  of  this  report,  I  concur  in  the  reso- 
Intions. 

.    J.  T.  H. 


Mr.  Milton  A.  Candlee  submitted  the  following  as  the 

VIEWS    OF    THE    MINORITY: 

The  undersigned,  a  minority  of  the  Committee  on  Elections,  to  whom  was 
referred  the  contested-electi^jn  case  from  the  third  Congressional  district 
of  Massachusetts,  having  considered  the  same,  make  the  folloicing  report  .- 

The  third  Congressional  district  of  Massachusetts  comprises  warda 
13,  14,  15,  1(),  17,  18,  19,  20,  21,  and  24  in  the  dty  of  Boston.  The  elec- 
tion for  Representatives  in  Congress  took  pla(;e  ni  that  State  on  Tuesday,, 
the  7tli  day  of  November,  1870,  at  which  time  Presidential  electors, 
governor,  and  other  State  officers  were  elected. 

The  manner  of  holding  elecjtions  for  Representatives  in  Congress  in  the 
city  of  Boston,  as  prescribed  by  the  State  law,  is  as  follows :  One  poll- 
ing place  is  opened  in  each  ward  of  the  city,  and  the  election  is  con- 
ducted by  a  warden,  clerk,  three  inspectors  appointed  by  the  mayor^ 
and  three  inspectors  chosen  by  the  qnalifie<l  voters  of  the  ward.  The 
warden  presides  at  the  election,  and  it  is  tlie  duty  of  the  warden  and 
inspectors  to  receive,  sort,  and  count  tlie  votes,  the  clerk  being  allowed 
to  assist  in  assorting  aud  counting  the  votes. 


214  DIGEST  OF  f:lkction  cases. 

The  result  being  thus  ascertained  by  the  ward  officers,  public  declara- 
tion is  made  thereof  by  the  warden  in  open  ward  meetiui,'  before 
adjournment.  The  result  having  been  recorded  by  the  ward  clerk,  a 
certified  copy  of  this  record  shall  be  by  the  ward  clerk  delivere<l  to  the 
city  clerk,  who  shall  forthwith  enter  the  same  in  the  city  records.  After 
all  the  ballots  have  been  sorted,  counted,  declared,  and  recorded,  they, 
together  with  the  checklists,  are,  in  open  ward  meeting,  secureil  in  an 
envelope,  sealed  with  a  seal  provided  for  the  purpose,  and  with  the 
indorsement  of  the  warden,  clerk,  and  a  majority  of  the  inspectors,  giving 
the  name  of  the  ofdce  for  which  the  ballots  were  cast,  the  ward  iii 
which  cast,  the  day  of  election.  &c.,  entered  thereon,  are  transmitted 
forthwith  by  the  constable  in  attendance  at  said  election,  or  by  one  of 
the  ward  officers  other  than  the  clerk,  to  the  city  (;lerk.  Certified  copies 
of  the  ward  records,  together  with  "all  the  ballots  given  in  by  the 
A^oters  of  the  wards  and  none  others,"  and  the  checklists,  being  in  the 
custody  of  the  city  clerk,  it  is  made  the  duty  of  the  mayor  and  aldermen 
and  the  city  clerk  to  exainme  the  returns  made  by  the  returniug-officers 
of  each  ward  in  the  city,  and  if  any  error  appears  they  shall  forthwith 
notify  said  ward  officers  thereof,  and  require  of  them  new  and  additioijal 
returns,  which,  together  with  the  original  returns,  shall  be  included  in 
their  return  of  the  result  of  the  election. 

"In  counting  the  votes  in  an  election  no  returns  shall  be  rtyected 
when  the  votes  given  for  each  candidate  can  be  ascertained."  After 
this  examination  of  the  returns  of  the  ward  officers  by  the  mayor  and 
aldermen,  and  the  same  have  been  recorded,  it  is  the  duty  of  the  city 
clerk,  within  ten  days  of  the  day  of  the  election,  to  transmit  copies  of 
the  records  of  the  votes,  attested  by  him,  certified  by  the  mayor  and 
aldermen,  and  sealed  u]>,  to  the  secretary  of  the  Commonwealth.  The 
secretary,  ui)on  receiving  these  certified  returns  under  seal,  shall 
transmit  them  with  the  seals  unbroken  to  the  governor  and  council, 
who,  with  five  at  least,  of  the  council,  shall  examine  them  and  issue 
his  "summons"  (certificate)  to  the  person  who  shall  ai>pear  from  these 
returns  to  be  chosen  n»ember  of  Congress.  We  have  so  far  stated  what 
must  take  place  in  every  election,  whether  its  fairnevss  or  correctness  in 
questioned  or  not.  If  the  correctness  of  the  election  as  held  in  the  wards 
is  questioned  then  the  duties  of  the  board  of  aldermen  as  to  theexami 
nation  and  correction  of  the  ward  returns  are  made  more  specific. 

It  is  provided  by  sections  4  and  5,  chapter  188,  of  the  laws  of  Massa 
chusetts,  187G,  as  follows: 

Skc.  4.  If  within  thr«e  <!a,ys  next  followiug  the  day  of  any  election  teu  or  uior«> 
qualified  voters  of  any  ward  shiill  file  with  the  city  clerk  a  Rtatem- nt  in  writing  that 
they  have  reason  to  l>c'iievi-  that  the  retnrns  of  the  ward  officers  are  erroneous,  speci- 
fying wherein  they  deem  thorn  in  error,  said  city  clerlv  shall  forthwith  transmit  such 
statement  to  the  hoard  of  aM'nmen  or  the  committee  thereof  appointed  to  examine 
the  returns  of  said  election.  The  board  of  aldermen,  or  their  committee,  shall  there- 
upon, and  within  five  days.  Sunday  excepted,  next  following  the  day  of  election,  opea 
the  envelope  and  examine  the  i>allot8  thrown  in  said  v\  ard,  and  deteriiiine  tlie  que.stioua 
raised ;  they  shall  then  again  seal  the  envelope,  either  with  the  seal  of  the  city  or  a  seal 
provided  for  the  purpose,  and  shall  indorse  upon  said  envelope  a  certificate  that  the 
same  has  heeu  opened  and  again  sealed  by  tbem  in  conformity  to  law  :  and  the  en- 
velope, sealed  as  aforesaid,  shall  be  returned  to  the  city  clerk.  Said  city  clerk,  upon 
the  certificate  of  the  board  of  aldermen  or  their  committee,  shall  alter  and  ameud  such 
ward  returns  as  have  been  proved  to  be  erroneous,  and  such  amended  returns  shall 
stand  as  the  true  returns  of  the  ward. 

Skc.  5.  The  board  of  aldermen  shall  not  declare  the  result  of  an  election  until  the 
time  specified  in  the  preceding  sect.i'»n  for  filing  a  request  for  a  recount  of  ballots  shall 
have  expired,  or  in  case  of  such  request  having  been  made,  until  the  said  ballots  have 
been  examined  and  the  returns  amended,  if  found  erroneous,  any  provision  in  tho 
charter  of  any  city  or  in  any  act  in  amendment  thereof  to  the  contrary  notwithstanding. 


DEAN    VS.    FIELD. 


215 


That  is,  when  the  board  of  akleruien  shall  be  informed  by  ten  or  more 
•qualified  votervS  of  any  ward  that  there  is  reason  to  believe  that  the 
ward  returns  are  erroneous,  it  shall  be  the  duty  of  the  board  of  alder- 
men or  the  foniniittee  thereof  to  examine  tlie  ballots  thrown  in  the  ward, 
and  if  the  return  is  found  to  be  erroneous  to  cause  it  to  be  altered  and 
amended,  and  tlie  returns  thus  amended  are  to  stand  as  the  true  returns 
of  the  ward. 

The  fac;ts  in  this  case  are  that  in  the  several  wards  comprising  the 
district  elections  weie  held  for  a  Rei)resentative  in  Congress  in  the  man- 
ner provided  by  the  laws  of  the  commonwealth  herein  substantially  set 
forth.  Walbridge  A.  Field,  the  candidate  of  the  Republican  party,  and 
Benjamin  Dean,  the  candidate  of  the  Democratic  party,  both  residents 
x)f  the  district,  were  the  persons  for  whom  nearly  all  the  votes  were  cast. 
In  tl»e  several  wards  comprising;  tlie  district  after  the  sorting,  counting, 
and  <leclaration  of  the  votes,  returns  were  made  to  the  city  clerk  of  the 
result,  together  with  the  check-lists  and  ballots,  in  the  manner  pre- 
«cril)ed  by  law.  The  following  tabulated  statement  from  these  returns 
gives  the  results  of  the  elections  as  held  in  the  several  wards: 


Ward  returns. 


1" 

14        15 

1, 076  I    855 
939      753 

« 

" 

18 

19 

20 

21 

24 

TotalB. 

Senjainiu  Dean Il,495 

Wallnidpe  A.  Field 1    219 

Walbrulge  A. Field  (■Jthdist.) .  

896 
621 

802 
1,131 

679 

1,410 

25 

1,126 
614 

1,038 
897 

547 
1,331 

895 
1,361 

9,308 

9,27« 

25 

A.  Fifld    

1 
1 

1 

Field ' 

.  ..  . 



I 

JSaniael  D  Smith \ 

' 

1 

.... 

1 

1 

i 

At  each  of  the  ward  meetings  in  the  ten  wards  in  this  district  were 
present  two  supervisors  of  election  appointed  by  the  judge  of  the  circuit 
•court  of  the  United  States  for  the  circuit  wherein  is  situated  said  elec- 
tion district,  in  the  manner  provided  for  by  section  HOll  of  the  United 
States  Revised  Statutes,  and  performed  all  the  acts  required  by  law  to 
be  done  by  them  at  2)lace8  for  holding  eUciions  of  Representatives  in  Con- 
gress. These  supervisors  made  and  reported  to  the  chief  supervisor  of 
elections  for  this  district  of  Massachusetts  returns  of  the  votes  cast  for 
Representative  in  Congress.  From  these  returns  it  appears  that  Ben- 
jamin Dean  received  9,308  votes.  Walbridge  A.  Field  9,276  votes,  and 
that  there  were  25  additional  votes  cast  in  ward  18  for  Walbridge  A. 
Field,  of  fourth  district,  not  counted.  These  returns  differed  from  the 
returns  of  the  ward  oHicers  in  not  giving  the  scattering  votes  for  A. 

Field. Field,  and  Samuel  D.  Smith,  and  giving  Benjamin  Dean,  in 

the  fourteenth  ward,  one  v'ote  less,  and  in  the  sixteenth  ward  one  vote 
more  than  shown  by  the  returns  of  those  two  wards. 

It  appears  from  the  evidence  that  in  wards  13,  15, 17,  and  19  there 
was  no  scrutiny  andcountinir  of  all  the  ballots  cast,  by  each  of  the  su- 
pervisors. In  the  remaining  six  wards  it  appears  from  the  evidence 
that  the  supervisors  perscmally  scrutinized,  canvassed,  and  counted  all 
the  ballots  cast  for  Representative  to  Congress.  It  does  not  appear 
from  the  returns  made  by  the  surpervisors  that  the  votes  cast  in  the 
several  wards  were  by  them  counted,  except  in  one  ward,  the  18th,  and 
only  in  that  ward  does  it  appear  when  and  how  the  counts  of  the  super- 
visors were  made.  In  that  ward  the  ballots  were  first  counted  by  the 
ward  officers,  and  then  by  them  were  handed  to  the  supervisors,  who 


216 


DIGEST  OF  ELECTION  CASES. 


separately  and  carefully  counted  them  with  the  same  result  as  that  of 
the  ward  officers. 

Within  three  days  next  following  the  day  of  this  election,  statements 
in  writing:  by  ten  or  more  qualified  voters  of  each  of  the  wards  of  the 
district  were  made  out  and  filed  with  the  city  clerk.  These  statements 
were  the  same  in  each  w^ard,  and  were  drawn  np  at  the  office  of  the 
chairman  of  the  returned  member's  <listrict  committee,  and  were  by  him. 
sent  out  for  signatures.    They  were  in  form  as  follows  : 

To  the  city  clerk  of  the  city  of  Boston  : 

The  undersigned,  qualified  voters  of  ward  13,  in  the  third  Congressional  district^ 
hereby  state  that  they  have  reason  to  believe  that  the  returns  of  the  ward  oflScers  of 
said  ward  for  member  of  Congress  in  said  Congressional  district  at  the  election  of 
November  7,  1876,  are  erroneous  in  that  all  the  ballots  ca«t  for  Walbridge  A.  Field  as 
member  of  Congress  were  not  counted  and  credited  to  him,  and  that  more  ballots  wer» 
credited  to  Benjamin  Dean  as  a  member  of  Congress  than  were  cast  for  him  ;  and 
they  ask  for  a  recount  of  the  vote  of  said  ward  for  member  of  Congress,  in  accordance- 
with  the  provisions  of  section  4  of  chapter  188  of  the  acts  of  the  year  187(j. 

These  ward  statements  having  been  transmitted  to  the  board  of  alder- 
men, as  required  by  law,  a  committee  of  the  board  of  aldermen,  ap- 
pointed by  the  mayor  on  the  day  preceding  the  election,  opened  the  en- 
velopes containing  the  ballots  thrown  in  each  ward,  and  counted  said, 
ballots  with  the  result  shown  in  the  following  table : 


Official  count. 

13 

14 

15 

16 

17 

18 

19 

20 

21 

24 

ToUU. 

1.497 
225 

1,100 
950 

855 
751 

889 
625 

803 
1,131 

573 

1,413 

25 

1,125 
614 

1,035 
891 

545 
1.333 

893 
1,362 

9,315 

Walbridge  A.  Field 

Walbridge  A.  Field  (4th  diet.) 

9,2»& 
25 

Wm.  A.  Field  . . .'. 

1 

1 

Field 

3 

3. 

Leopold  Morse 

1 
2 

i 

KufuB  S.  Frost 

1 

» 

Francis  M.  Weld 

1 

1 

% 

This  result  having  been  reported  to  the  board  of  aldermen  by  its. 
committee  and  accepted  by  the  board,  the  city  clerk  altered  and 
amended  the  ward  returns  in  accordance  therewith,  and  entered  the 
same  with  the  resolution  of  the  board  in  the  city  records,  as  follows  : 

City  of  Boston. 

Jteoord  of  retvrrn  of  votes  given  in  the  several  wards  Xorember  7,  1876,  for  niembers  of  ih€ 

Forty-fifth  Congress. 

[Diatriot  No.  Three,  as  amended.] 


Wards. 

Totals. 

18 

14 

15 

1« 

17 

18 

10 

20        21 

24 

Walbridge  A.  Held 

Benjamin  Dean. 

225 
1,407 

090 
1,100 

751 

855 

«25 

888 
1 

1,131 

803 

1,438 
673 

614 

1     fXi 

801 
1,035 

1,333 
545 

1,362 
893 

9..'j2a 

9  315 

Wm.  A.  Field 

1 

Field  

3 

i. 

Tyeopnld  Mnrae 

I 

' 

1 

RufuBS.  Frnat 

1 

s. 

Francis  H.  Weld 

1 

1 

DEAN    VS.    FIELD.  217 

Eesolved,  That  in  the  opinion  of  this  board  the  twenty-five  ballots  cast  iu  the 
eighteenth  ward  of  this  city,  on  the  seventh  instant,  for  Walbridfje  A.  Fiehl,  of  Boston^ 
for  member  of  Congress  from  the  fourth  district,  were  intended  for  Walbridge  A. 
Fiehl,  of  B«t8ton,  who  was  noniinat«Hl  and  voted  for  .as  a  member  of  Congress  for  th» 
third  district.    It  is  therefore 

Ordeied,  That  in  the  certiticate  to  be  sent  to  the  secretary  of  the  commonwealth  the 
number  of  ballots  for  Mr.  Field  be  returned  as  follows:  Walbridge  A.  Field,  of  Boston, 
had  ninety-three  hundred  and  twenty ;  twenty-five  of  which  were  headed  Ward  XVIII, 
and  read  as  follows:  "  For  Representative  to  Congress,  fourth  district,  Walbridge  A. 
Field,  of  Boston.'* 

Passed 

S.  F.  McCLEARY, 

City  Clerk. 

In  Board  of  Aldkrmen,  Kovemher  15,  1877. 

Within  ten  days  from  the  day  of  the  election,  as  prescribe-d  by  the 
statute,  the  city  clerk  transmitted  copies  of  the  records  of  the  votes 
cast  for  members  of  Congress,  as  declared  by  the  board  of  aldermen,  to 
the  secretary  of  the  commonwealth,  by  whom  they  were  duly  transmit- 
ted to  the  governor  and  council.  From  this  return  it  appeared  that 
Walbridge  A. Field  had  the  highest  number  of  votes  cast  iu  the  election, 
and  was  chosen  Kepreseutative  in  Congress  from  said  district,  and  a 
certiticate  by  the  governor  was  issued  accordingly.  Within  the  time 
prescribed  by  the  statutes  of  the  United  States  notice  of  contest  was 
served  by  Mr.  Dean  upon  Mr.  Field.  The  questions  made  by  the  notice 
of  contest  and  the  answer  of  the  returned  member  and  the  evidence 
taken  relate  to  the  validity  of  the  several  counts,  and  do  not  go  to  the 
truth  of  the  case  further  than  as  shown  by  the  counts  themselves. 

In  the  eighteenth  ward  of  the  city  twenty-five  ballots  were  cast  desig- 
nating theCougressional  office  and  candidate  thus:  " For  Representative 
to  Congress,  fourth  district,  Walbridge  A.  Field,  of  Boston."  These 
twenty-live  ballots  were  counted  lor  Mr.  Field  as  Representative  to  Con- 
gress from  the  third  district  both  by  the  ward  officers  and  the  board 
of  aldermen,  and  are  necessary  to  the  eleciiou  of  Mr.  Field.  The  con- 
testant avers  that  these  votes  were  improperly  and  illegally  counted  for 
Field.  They  were  legally  counted  if  they  clearly  indicate  the  office  for 
which  the  person  is  designed,  and  the  intention  of  the  voter  as  to  that 
person  can  be  ascertained  from  the  ballot.  Evidence  may  not  be  re- 
ceived to  contradict  the  ballot  nor  to  give  it  a  meaning  when  it  ex- 
presses no  meaning  of  itself;  but  if  it  be  of  doubtful  import,  the  circum- 
stances surrounding  the  election  may  be  given  in  evidence  to  explain 
it  and  get  at  the  intent  of  the  voter.  (McCrary's  Law  of  Elections, 
p.  299.)  The  office  to  be  filled  was  Representative  in  Congress.  The 
words  "fourth  district"  constitute  no  part  of  the  designation  of  that 
office.  The  way  it  happened  that  the  words  "fourth  district"  had  been 
printed  upon  these  ballots  was  explained  by  the  person  printing  them, 
that  he  had  neglected  to  take  from  his  printing-pre^s  the  type  contain- 
ing these  words,  which  had  been  used  for  printing  ballots  for  Repre- 
sentative in  Congress  in  the  adjoining  fourth  district.  Walbridge  A. 
Field  was  the  candidate  for  Congress  in  the  third  district ;  he  resided  ia 
that  district.  There  was  no  other  Walbridge  A.  Field  residing  in  that 
district  or  in  the  city  of  Boston  ;  the  ballots  were  cast  in  the  eighteenth 
ward  and  third  district,  and  by  law  could  only  be  cast  by  persons  re- 
siding iu  that  ward  and  district.  Clearly,  then,  from  these  ballots  and 
the  evidence  showing  by  whom  they  were  Ciist,  and  the  circumstai»ces 
under  which  cast,  it  appears  that  they  were  cast  for  Walbridge  A.  Field, 
one  of  the  candidates  for  Congress  in  the  third  district  ibr  Representa- 
tive in  Congres.s  from  that  district.  The  words  ••fourth  district"  not 
rendering  uncertain  the  office  intended  to  be  designated  or  the  person 


218  DIGEST  OF  ELECTION  CASES. 

voted  for,  we  think  that  these  twenty-five  votes  were  le,a:all.v  counted 
for  Field  as  Eepresentative  to  Oon^^Tess  from  the  said  third  district. 

Tlie  (jnestion  left  in  this  case,  and  the  decision  of  which  determines 
which  of  the  parties  to  this  contest  is  the  duly  chosen  Kepreseutative 
from  the  third  district  of  Massachusetts  in  the  Forty-fifth  Congress,  is, 
which  of  the  several  counts  made  is  the  true  count  of  the  law? 

The  Constitution  of  the  United  States  jjrovides  that  "the  time,  places^ 
and  manner  of  holding  elections  for  Senators  and  Representatives  shall 
be  prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress 
may  at  any  time  by  law  make  or  alter  such  regulations  except  as  to  ths 
j^lace  of  choosing  Senators."  (Sec.  4, 1st  art..  Const.  U.  S.)  Under  this 
mandate  of  the  Constitution  there  is  prescribed  in  the  State  of  Massa- 
chusetts, by  the  legislature  thereof,  a  complete  system  of  laws  as  to  the 
places  and  manner  of  holding  elections  for  Representatives  in  Congress 
and  for  ascertaining  the  result  of  these  elections.  Thnt  system  is  not 
complete  in  the  holding  of  the  elections  in  the  wards  of  the  cities  com- 
prising the  districts  and  in  the  separate  declaration  of  the  votes  in  the 
wards. 

Without  the  examination  of  the  returns  from  the  wards  by  the  alder- 
men there  can  be  no  determination  as  to  the  result  of  the  electioUiS 
lield  in  the  several  w^ards  comprising  the  district.  The  l)oard  of  alder- 
men is 'the  only  body  that  at  any  time  is  pQssessed  of  all  the  means 
necessary  to  ascertain  who  has  been  chosen  a  Representative  iu  Con- 
gress for  the  district. 

It  is  the  duty  of  the  mayor  and  aldermen  and  the  clerk  to  examine 
the  returns  made  by  the  returning  officers  of  the  several  wards,  and  to 
compel  the  correction  of  any  errors  which  may  be  discovered  by  them, 
and  make  record  of  the  corrected  returns.  The  ballots,  voting-lists,  and 
records  remain  in  their  possession. 

"In  counting  (by  the  mayor,  aldermen,  and  clerk)  all  the  votes  cast  in 
an  election,  no  returns  of  these  votes  from  the  wards  shall  be  rejected 
when  tJie  votes  given  for  each  candidate  can  he  ascertained.''^  It  is  from 
the  records  of  this  board,  attested  and  certified  by  them,  that  the  gov- 
ernor is  informed  of  the  result  of  the  election,  and  issues  his  summona 
to  the  person  that  appears  from  the  records  to  have  been  chosen.  (Sec. 
15,  16,  17,  and  22,  Gen.  Stats.  Mass.,  chap.  7  ;  Record,  pp.  209,  210,  and 
211.)  More  distinctly  is  it  provided  under  the  act  of  the  legislature  ap- 
proved April  20,1876,  herein  before  set  forth,  that  whenever  statements  in 
writing  by  ten  or  more  qualified  voters  of  any  ward,  stating  that  they 
have  reason  to  believe  that  the  returns  of  the  ward  officers  are  erro- 
neous, specifying  wherein  they  deem  them  in  error,  are  filed  with  the 
city  clerk,  there  shall  be  an  examination  of  the  ballots  thrown  in  that  ward, 
and  a  determination  by  the  board  of  the  questions  raised.  There  can 
be  no  declaration  of  the  result  of  an  election  by  the  board  of  aldermen 
until  the  expiration  of  the  time  for  filing  these  requests  for  a  recount  of 
the  ballots,  or  in  case  of  such  request  there  has  been  an  examination  of 
the  ballots  and  an  amendment  of  the  returns,  if  erroneous. 

These  "amended  returns,"  the  result  of  the  recount  by  the  aldermen, 
are  to  stand  as  the  true  returns  of  the  ward.  It  is  insisted  that  th« 
«ount  made  in  this  case  by  the  aldermen  was  unthorized  by  law,  the 
statements  in  writing  filed  with  the  clerk  being  insufficient  under  the 
statute. 

The  purpose  of  the  statute  clearly  was  to  compel  an  examination  and 
count  of  the  ballots  cast  in  any  ward  whenever  ten  or  more  qualified 
•voters  should  say  to  them  iu  writing  that  they  had  reason  to  believe 


DEAN    VS.    FIELD.  219 

that  the  ward  returns  were  erroneous,  and  specify  wherein  they  deemed 
ihetn  in  error. 

Stat^^nieiits  from  every  ward  of  the  district  in  writing:,  signed  by  ten 
or  more  qnalitied  voters  from  the  wards  resjiectively,  saying  they  had 
reason  to  believe  that  the  returns  of  the  ward  otHcers  were  erroneous, 
si)ecifying  "  that  all  the  ballots  cast  for  VValbridge.A.  Field,  as  member 
of  Congress,  had  not  been  counted  and  credited  to  him,  and  that  more 
ballots  were  credited  to  Benjamin  Dean  as  member  of  Ciuigress  than 
were  cast  for  him,"  had  been  filed  with  the  city  clerk.  The  complaint 
to  be  made  is  not  as  to  the  manner  in  which  the  election  by  the  ward 
<»tiicer8  has  been  conducted  ;  it  does  not  go  to  any  wrongful  act  of  these 
officers,  but  is  directed  specifically  to  the  ascertained  result,  the  returns 
made  by  these  officers.  The  object  to  be  accooaplished  is  to  have  an 
examination  and  count  of  the  ballots  by  the  board  of  aldermen.  The 
'Com])laint  can  only  be  as  to  the  result  of  the  count  of  the  ballots  by  the 
ward  officers. 

This  specification  of  error  is  to  be  by  persons  who  were  iu  no  way 
connected  with  the  count  of  the  ballots  ;  by  persons  who  cast  the  ballots 
and  who  have  reason  to  believe  that  there  has  been  error  in  their  count. 

Statements  by  such  persons  could  hardly  be  more  s}>ecific  than  those 
filed  in  this  case,  "  that  all  the  ballots  cast  for  Walbridge  A.  Field  had 
uot  been  couuted  and  credited  to  him,  and  that  more  ballots  had  been 
credited  to  Benjamin  i3eau  than  were  cast  for  him." 

It  is  the  opinion  of  your  committee  that  these  statements  were  suffi- 
cient in  law  to  authorize  the  examination  and  count  of  the  ballots  cast 
iu  the  several  wards  by  the  board  of  aldermen. 

The  law  of  Massachusetts  in  terms  declares  that  the  returns  as 
ameiuled  by  the  board  of  aldermen,  the  count  of  the  ballots  by  them, 
shall  "  stand  as  the  true  returns  of  the  ward."  This  count  is  the  final, 
the  ascertained,  result  of  an  election  held  in  the  manner  prescribed  by 
the  legislature  of  the  State  frn-  holding  elections  for  Representatives  in 
•Congress,  and  must  stand  as  showing  the  choice  of  the  people  of  that 
<iistrict  for. that  Ilei)resentative,  unless  it  be  shown  to  the  House  of 
Representatives,  judging  of  the  election  of  one  of  its  members,  not  to 
be  true  by  evidence  other  than  the  ward  counts,  which  are  by  this  count 
reviewed  and  corrected. 

'Notwithstanding  it  appears  from  the  evidence  of  the  ward  officers 
themselves  and  others  who  witnessed  the  manner  of  holding  the  elec 
tion  by  the  ward  officers,  and  the  counting  by  them  of  the  ballots,  that 
their  counts  were  carefully  ujade — and  they  have  no  reason  to  be- 
lieve that  thev  were  not  correctly  made — they  are  insufficient  to  show 
that  the  subsequent  count  is  untrue,  and  are  incompetent  to  that  pur- 
pose ;  for,  by  law,  the  count  by  the  aldermen  is  one  in  review  and 
in  correction  of  these  counts,  and  instead  of  them  is  to  stand  as  the 
true  return  of  the  election.  That  rule  of  law  that  would  allow  this 
would  be  like  unto  one  which  wpqld  hold  the  reversed  judgment  of  an 
inferior  court  evidence  sufficient  to  show  the  reversing  judgment  of  the 
superior  court  to  be  erroneous.  To  state  the  proposition  is  to  show  its 
unsoundness.  • 

Supervisors  of  elections  for  each  of  the  wards  in  said  district  were 
appointed  by  the  judge  of  the  circuit  court  of  the  United  States  for  the 
circuit  in  which  said  district  was  situated.  These  supervisors  were  pres- 
<?nt  at  the  several  ward  meetings  at  which  this  election  was  held,  and 
afterward  certified  and  made  returns  of  the  votes  received  by  the  two 
-candidates  to  the  chief  supervisor. 

According  to  these  several  returns  Benjamin  Dean  received  9,308 


220  DIGEST  OF  ELECTION  CASES. 

votes,WalbridgeA.  Field  received  9,276  votes,  and  there  were  '-tweuty- 
five  additional  votes  cast  for  Walbridge  A.  Field,  of  fourth  district,  not 
counted." 

Sections  2011,  2012,  2013,  2014,  2015,  2016,  2017,  2018,  and  2019  of 
the  Revised  Statutes,  which  were  enacted  as  amendments  to  an  act 
approved  May  31,  1870,  entitk^l  "An  act  to  enforce  the  rights  of  citi- 
zens of  the  United  States  to  vote  in  tbe  several  States  of  this  Union,  and 
for  other  piirj)oses,"are  the  provisions  of  law  under  which  supervisor* 
of  elections  are  appointed  and  their  duties  prescribed. 

These  sections  are  as  follows : 

Skc.  2011.  Whenever,  in  any  city  or  town  having  upward  of  twenty  thousand  in- 
babitantH,  thore  are  two  citizens  thereof,  or  whenever,  in  any  county  or  parish,  in  any 
Congres-sional  district,  there  are  ten  citizens  thereof,  of  good  standing,  wlio,  prior  to 
any  registration  of  votci's  for  an  election  for  Representative  or  Delegate  in  the  Con- 
gress of  the  United  States,  or  prior  to  any  eleciion  at  wliich  a  Representative  or 
Delegate  in  Congress  is  to  he  voted  for,  may  make  known,  in  writing,  to  the  judge  ol 
the  circuit  court  of  the  United  States  for  the  circuit  wherein  such  city  or  town,  county 
or  parish,  is  situated,  their  desire  to  have  such  registration,  or  such  election,  or  both, 
guarded  and  scrutinized,  the  judge,  within  not  less  than  ten  days  i>rior  to  the  regis- 
tration, if  one  there  be,  or,  if  no  registration  be  required,  within  not  less  than  ten  days- 
prior  to  the  election,  shall  open  the  circuit  court  at  the  most  convenient  point  in  the 
circuit. 

Skc.  2012.  The  court,  when  so  opened  by  the  judge,  shall  proceed  to  appoint  and 
commission,  from  day  to  day  and  from  time  to  time,  and  under  the  hand  of  the  judge,, 
and  under  the  seal  of  the  court,  for  each  election  (list^-ict  or  voting  precinct  in  such 
city  or  town,  or  for  such  election  district  or  voting  precinct  in  the  Congressional 
district,  as  may  have  applied  in  the  manner  hereinbefore  prescribed,  and  to  revoke, 
ebange,  or  renew  such  appointment  from  time  to  time,  two  citizens,  residents  of  the 
city  or  town,  or  of  the  election  district  or  voting  precinct  in  the  county  or  parish,, 
who  shall  be  of  different  political  parties,  and  able  to  read  and  write  the  English 
language,  and  who  shall  be  known  and  designated  as  supervisors  of  election.  (See 
H  5521,5522.) 

Sec.  20l:i,  The  circuit  court,  when  opened  by  the  judge  as  re«iuired  in  the  twopre- 
eeding  sections,  shall  therefrom  and  thereafter,  and  up  to  and  including  the  day  fol- 
lowing the  day  of  election,  be  always  open  for  the  transaction  of  business  under  this- 
title,  and  the  powers  and  jurisdiction  hereby  granto<l  and  conferred  shall  be  exercised 
as  well  in  vacation  as  in  t«rm  time ;  and  a  judge  sitting  at  chambei-s  shall  have  the 
same  powers  and  jurisdiction,  including  the  power  of  keeping  order  and  of  punishing 
any  contempt  of  his  authority,  as  when  sitting  in  court. 

Sec.  2014.  Whenever,  from  any  cause,  the  judge  of  the  circuit  court  in  any  judicial 
circuit  is  unable  to  perform  and  discharge  the  duties  herein  imposed,  he  is  required  to 
select  and  assign  to  the  perftjrmance  thereof,  in  his  place,  such  one  of  the  judges  of  the 
district  courts  within  his  circuit  as  he  may  deem  best;  and  upon  such  stdection  and 
assignment  being  made,  the  district  judge  so  dfsignated  shall  perform  and  discharge, 
in  the  place  of  the  circuit  judge,  all  the  duties,  powers,  and  ol>ligations  imposed  an«i 
•onferred  upon  the  circuit  judge  by  the  provisions  hereof. 

Sec.  2015.  The  preceding  section  shall  be  construed  to  authorize  each  of  the  judge* 
of  the  circuit  courts  of  the  United  States  to  designate  one  or  more  of  the  judges  of  the 
district  courts  within  his  circuit  to  discharge  the  duties  arising  under  this  title. 

Sec.  2016.  The  supervisors  of  elections  so  appointed  are  authorized  and  required  to 
attend  at  all  times  and  places  tixed  for  the  registration  of  voters  who,  being  regis- 
tered, would  be  entitled  to  vote  for  a  Representative  or  Delegate  in  Congress,  and  to 
challenge  any  person  offering  to  register;  to  attend  at  all  times  and  places  when  the 
names  of  registered  voters  may  be  marked  for  challenge,  and  to  cause  such  names  reg- 
istered as  they  may  deem  proper  to  be  so  maiibid ;  to  make,  when  required,  the  lists, 
or  either  of  them,  provided  for  in  section  tw«\^dU8and  and  twenty-six,  and  verify  the 
same;  and  upon  any  occsision,  and  at  any 'thne  when  in  attendance  upon  the  duty 
herein  prescribed,  to  i)ersoually  inspect  ami  scrutinize  such  registry,  and,  for  purposes 
of  identification,  to  affix  their  signature  to  each  page  of  the  original  list,  and  of  each 
copy  of  any  such  list  of  registe'red  voters,  at  such  times,  u])on  each  day  when  any  name 
may  be  received,  entered,  or  i-egistered,  and  in  such  manner  as  will,  in  their  judg- 
ment, detect  and  expose  the  impro[ier  or  wrongful  removal  thereform,  or  addition 
thereto,  of  any  name. 

Sec.  2017.  The  supervisors  of  election  are  authorize«l  and  required  to  attend  at  all 
times  and  places  for  hohling  elections  of  Representatives  orDelegates  in  Congress,  and 
for  counting  the  votes  cast  at  such  elections;  to  challenge  any  vote  ottered  by  any 
person  whosif  legal  qualifications  the  supervisors,  or  either  of  them,  may  doubt;  to  be. 


DEAN    Vb.    FIELD.  221 

and  remain  where  the  ballot-boxes  are  kept  at  all  times  after  the  polls  are  open  until 
every  vote  cast  at  such  time  and  place  has  been  counted,  tUe  canvass  of  all  votes  polled 
wholly  completed,  and  the  proper  and  re(iuisite  ceititicates  or  returns  made,  whether 
the  certiticates  or  returns  be  reqnii'ed  underany  law  of  the  United  States,  or  any  State, 
Territorial,  or  municipal  law,  and  to  personally  inspect  and  scrntinize,  from  time  to 
time,  and  at  all  times,  on  the  day  of  election,  the  manner  in  which  the  voting  is  done 
and  the  way  and  method  in  which  the  poll-books,  registry-lists,  and  tallies  or  check- 
books, whether  the  same  are  required  by  any  law  of  the  IJnited  States,  or  any  State, 
Territorial,  or  municipal  law,  are  kept. 

Sec.  2018.  To  the  end  that  each  candidate  for  the  office  of  Representative  or  Delegate 
in  Congress  may  obtain  the  benefit  of  every  vote  for  him  cast,  the  supervisors  of  elec- 
tion are,  and  each  of  them  is,  required  to  personally  scrutinize,  count,  and  cauv.iss 
each  ballot  in  their  election  district  or  voting  precinct  cast,  whatever  maybe  the  in- 
dorsement on  the  ballot,  or  in  whatever  l)ox  it  may  have  been  placed  or  be  found  ;  to 
make  au<\  forward  to  the  officer  who,  in  accordance  with  the  provisions  of  section  two 
thousand  and  twenty-five,  ha.s  been  designated  as  the  chief  supervisor  of  the  judicial 
■district  in  which  the  city  or  town  wherein  they  may  serve,  acts,  such  certificates  and 
returns  of  all  such  ballots  a*  such  officer  may  direct  and  require,  and  to  attach  to  the 
registry- list,  and  any  and  all  copies  thereof,  and  to  any  certificate,  statement,  or  re- 
turn, whether  the  same,  or  any  part  or  portion  tliereof,  be  required  by  any  law  of  the 
United  States,  or  of  any  State,  Territorial,  or  municipal  law,  any  statement  touching 
the  truth  or  accuracy  of  the  registry,  or  the  truth  or  fairuetjs  of  the  election  and  can- 
vass, which  the  supervisors  of  the  election,  or  either  of  them,  may  desire  to  make  or 
Attach,  or  which  .should  properly  and  honestly  be  made  or  attached,  in  order  that  the 
facts  may  become  known. 

Sec.  2019.  The  better  to  enable  the  supers-isors  of  election  to  discharge  their  duties, 
they  arc  authorized  and  directed,  in  their  respective  election  districts  or  voting  pre- 
cincts, on  the  day  of  registration,  on  the  day  when  registered  voters  may  be  marked 
to  be  challenged,  and  on  the  day  of  election,  to  take,  occupy,  and  remain  in  such  posi- 
tion, from  time  to  time,  whether  before  or  behind  the  ballot-boxes,  as  will,  in  their 
judgment,  best  enable  them  to  see  each  i>ersou  oifering  himself  for  registration  or 
otferiug  to  vote,  and  as  will  best  conduce  to  their  scrutinizing  the  manner  in  which 
the  registration  or  voting  is  being  conducted ;  and  at  the  closing  of  the  polls  for  the 
reception  of  votes,  they  are  retiuired  to  place  themselves  in  such  position,  in  relation 
to  the  ballot-boxes,  for  the  purpose  of  engaging  in  the  work  of  canvassing  the  ballots, 
ats  will  enable  them  to  fully  perform  the  duties  in  respect  to  such  canvass  provided 
herein,  and  shall  there  remain  until  every  duty  in  respect  to  such  canvass,  certificates, 
returns,  and  statements  has  been  wholly  completed. 

These  provisions  of  law  were  not  enacted  by  Congress  in  pursuance 
of  its  constitutional  power  to  "  make  or  alter  "  regulations  as  to  the  man- 
ner of  holding  elections  for  Representatives  in  Congress. 

They  are  not  certainly  to  operate  even  to  the  supervision  of  an  elec- 
tion for  a  single  polling  place  in  a  city  or  county  which  may  constitute 
only  a  part  of  an  election  district,  but  shall  only  operate  when  a  certain 
number  of  citizens  shall  make  known  in  writing  to  a  United  States 
judge  their  desire  to  have  the  election  "  guarded  and  scrutinized.^ 

The  manner  of  holding  such  an  election  is  in  no  way  regulated. 

These  officers  are  designated  as  "  supervisors  of  elections."  They  are 
apix)inted  by  the  Judges  of  the  Federal  courts  as  instruments  in  the 
process  of  "  enforcing  the  rights  of  citizens  of  the  United  States  to  vote 
in  the  several  States; "  not  managers  of  an  election,  but  guardians  and 
,scrutinizers  of  an  election  managed  by  others,  officers  of  the  Sta,tes. 

They  are  to  attend  at  all  times  and  plaees  for  holding  elections  for 
Representatives  in  Congress,  and  for  counting  the  votes  at  such  elec- 
tions in  order  that  they  may  challenge  votes  and  inspect  and  scrutinize 
the  manner  in  which  the  voting  is  done,  but  they  are  not  to  receive  or 
decide  upon  the  legality  of  any  vote,  or  regulate  the  manner  in  which 
the  voting  is  done.  On  the  day  of  election  and  at  the  places  of  holding 
the  election  they  are  to  take,  occupy,  and  remain  in  such  position  as  will 
best  enable  them  to  see  each  person  voting,  scrutinize  the  manner  in 
which  the  voting  is  being  condncted,  and  at  the  closing  of  the  polls 
they  are  to  put  themselves  in  such  a  position  in  relation  to  the  ballot- 
boxes,  for  the  purpose  of  engaging  in  the  work  of  canvassing  the  bal- 


222  DIGEST  OF  ELECTION  CASES. 

lots,  as  will  enaV)le  them  to  fully  perform  their  duties  in  respect  to  such 
cauvass  herein  provided,  but  they  are  not  to  be  in  position  enabling 
them  to  receive  a  vote,  conduct  an  election,  or  control  a  ballot-box. 

Each  of  these  supervisors  is  required  '-personally  to  scrutinize,  count, 
and  canvass  each  ballot  in  their  election  district  cast;  "  not  as  a  board  of 
election  managers,  to  ascertain  the  number  of  ballots  cast  and  for  whom 
cast,  and  as  such  board  to  make  returns  thereof  to  the  State  officer  who 
shall  certify  that  result,  or  the  House  of  Eepresentatives,  who  shall  judge 
of  that  return  ;  buteach  onepersonally  i*to  scrutinize,  count,  and  cau  vas» 
each  ballot  cast  in  his  voting  precinct,  and  make  "  such  certificate  and  re- 
turn of  all  such  ballots  "  as  may  be  directed  and  required  by  the  chief 
supervisor  from  wiioin  he  received  his  appointment.  They  make  re- 
turns only  of  what  they  have  seen  in  the  management  of  the  election,  to 
the  chief  super^^sor  appointed  by  the  judge  of  the  circuit,  "  in  order  that 
the  facts  may  become  known."  "  Become  known  "  through  these  super- 
visors, these  witnesses  for  the  courts  having  jurisdiction  of  the  offenses 
created  in  these  acts,  enacted  to  "  enforce  the  rights  of  citizens  of  the 
United  States  to  vote  in  the  several  States  of  the  Union,  and  for  other 
purposes." 

Further  than  the  returns  made,  which  do  not  in  t^rms  show  a  count 
made  by  these  supervisors,  except  as  to  the  returns  from  the  eighteenth 
■ward,  the  evidence  does  not  show  that  the  supervisors  counted  tlie  votes 
in  the  wards  comprisiug  the  election  district.  So  that,  in  the  determi- 
nation of  the  value  of  those  returns  as  evidence  in  this  case,  their  only 
value  is  in  their  official  character. 

The  undersigned,  believing  that  they  are  not  counts  made  and  results 
ascertained  iu  pursuance  of  any  law  made  ''  to  regulate  the  manner  of 
holding  elections  for  Representatives  in  Congress,"  hold  that  they  are 
insufficient  to  set  aside  the  result  found  in  this  case  according  to  the 
law  of  the  State  of  Massachusetts,  the  certified  return  of  the  board  of 
aldermen. 

It  is  averred  by  the  contestant  that  the  count  by  the  aldermen,  upon 
which  rests  the  right  of  the  returned  member  to  his  seat,  was  made  by 
three  members  of  the  board  of  aldermen  in  private  and  not  in  the  pres- 
ence of  the  public;  that  it  was  made  without  notification  to  the  contest- 
ant, or  the  supervisors  of  election,  appointed  in  pursuance  of  the  United 
States  statutes,  and  that  these  supervisors  were  not  pei'initted  to  be,  and 
were  not  in  fact,  present  at  the  recount  of  the  bal!  Jts  by  the  aldermen, 
and,  as  inference  from  these  fact«,  it  is  averred  that  the  count  of  the 
aldermen  did  not  show  the  true  number  of  votes  cast  for  the  parties  to 
this  contest.  It  is  not  insisted  that  because  of  these  facts  the  count  of 
the  aldermen  is  void,  but  that  they  so  discredit  the  count  that  it  may 
not  be  set  up  as  the  true  return  of  the  election  as  against  the  counts 
made  in  the  wards.  The  evidence  shows  that  no  notice  of  the  examina-  ■ 
tion  and  count  of  the  ballots  by  the  aldermen  was  given  to  the  super- 
visors of  the  election  or  to  either  of  the  parties  to  the  contest,  and  that 
none  of  these  parties  were  present.  The  committee  who  made  the  count 
was  appointed  for  this  purpose  by  public  action  of  the  board  of  alder- 
men on  the  day  immediately  preceding  that  of  the  election,  and  it  was 
appointed  in  pursuance  of  a  i)ublic  statute  of  the  State. 

There  is  no  evidence  that  there  was  any  exclusion  of  any  person,  su- 
pervisor or  candidate,  from  the  count.  The  count  was  made  by  the 
committee  in  one  of  the  rooms  of  the  city  hall,  and  with  the  aid  of  the 
assistant  city  clerk  and  the  clerk  and  assistant  clerk  of  committees  of 
the  board  of  aldermen.  At  times  during  the  count  the  city  clerk  and 
eity  attorney  were  present.    The  door  of  the  room  in  which  the  count 


DEAN    VS.    FIELD.  22^ 

T¥as  raade  was  not  kept  locked.     Tlie  count  required  the  larger  part  of 
two  days,  and  both  parties  knew  it  was  to  be  made. 

The  count  was  made  during  the  time,  at  the  place,  and  in  the  manner 
required  by  law.  There  is  no  law  requiring  the  presence  of  any  person 
other  than  the  committee,  unless  it  be  found  in  that  regulating  the 
duties  of  the  supervisors  of  election. 

The  sole  object  of  the  act  of  Congress,  of  which  the  sections  of  the 
Revised  Statutes  hereinbefore  set  forth  are  a  part,  was  to  enforce  "  the 
right  of  the  citizen  to  vote  and  to  secure  that  vote  to  the  candidate  for 
whom  intended."  To  that  end  it  is  provided  that  these  supervisors 
shall  attend  at  thejy^aces  for  holding  the  elections  for  Representatives,  and 
counting  the  votes  cast  at  such  election,  and  to  remain  where  the  bal- 
lot-boxes are  kept  at  all  times  after  the  polls  are  open  until  everj'  vote 
cast  at  such  time  has  been  counted  and  the  canvass  completed.  Evi- 
dently this  only  required  the  supervisors  to  be  at  the  place  where  the 
election  is  held,  in  the  precinct  or  polling-place  for  which  they  are  ap- 
pointed, and  not  at  the  place  where  the  returns  from  all  the  precinct* 
are  carried  for  examination,  recount,  and  consolidation. 

At  this  i)lace  there  is  no  vote  which  may  be  challenged,  no  ballot-box 
opened  for  the  reception  of  votes ;  there  is  nothing  which  may  be  done 
by  the  supervisors  appointed  for  a  precinct  to  "  guard  and  scrutinize'^ 
the  election  there  held. 

There  being,  then,  no  violation  of  law  in  the  manner  of  the  count  by 
the  committee  of  aldermen,  and  none  requiring  the  presence  at  or  the 
participation  in  this  count  by  the  twenty  supervisors  appointed,  two 
each  for  the  several  precincts  or  polling-places  in  the  district,  we  think 
that  count  is  in  no  degree  discredited. 

We  therefore  find  that  the  result  of  the  election  in  the  third  Congres- 
sional district  of  the  State  of  Massachusetts  for  a  Representative  to  the 
Forty-tifth  Congress,  ascertained  in  the  manner  prescribed  by  the  laws 
of  that  State,  is  that  Walbridge  A.  Field  received  9,320  votes  and  Ben- 
jamin Dean  received  9,315  votes ;  and  that  the  former,  having  received 
the  highest  number  of  votes,  is  duly  elected. 

We  recommend  the  adoption  of  the  following  resolutions  as  a  substi- 
tute for  the  resolutions  rei)orted  by  the  majority  of  the  committee: 

Resolved,  That  Walbridge  A.  Field  is  entitled  to  a  seat  in  this  House 
as  a  Representative  in  the  Forty-fifth  Congress  from  the  third  district 
of  Massachusetts. 

Resolved,  That  Benjamin  Dean  is  not  entitled  to  a  seat  in  this  House 
as  a  Representative  in  the  Forty-fifth  Congress  from  the  third  Congrea- 
eional  district  of  Massachusetts. 

MHiTON  A.  CANDLER. 
FRANK  HISCOCK. 
J.  M.  THORNBURGH. 
.TNO.  T.  WAIT. 
H.  PRICE, 


:224 


DIGEST    OF    ELECTION    CASES, 


JOHN  8.  RICHARDSON  vs.  JOSEPH  H.  RAINBY. 

First  Congressional  District  of  South  Carolina. 

Charges  of  intimidation,  violence,  and  military  interference  and  of  irregularities  and 
informalities  at  the  polls. 

Held,  That  violations  of  the  election  laws  that  are  purely  directory  in  their  charact«r^ 
if  no  fraud  be  shown  to  have  resulted  therefrom,  cannot  vitiate  an  election.  li 
is  wholly  diiFerent  when  mandatory  provisions  are  violated.  In  the  latter  case 
the  election  is  void. 

It  need  not  be  that  there  is,  at  the  time  of  voting,  the  presence  of  force  or  the  pres- 
ent fear  of  actual  bodily  hurt;  but  the  fear  of  hai'm,  of  social  ostracism,  of  relig- 
ious wrath  if  brought  to  bear  upon  the  body  of  voters,  or  if  exercised  to  any  great 
extent,  and  if  so  general  as  to  affect  the  result,  and  the  general  result  cannot  b« 
ascertained  from  the  returns,  the  election  is  void. 

The  sending  of  United  States  troops  into  South  Carolina  in  October,  187G,  the  uses 
made  of  their  presence  produced  a  marked  and  controlling  eifect  upon  the  election, 
sufiScient  to  justify  declaring  void  the  election  of  November  7. 

A  minority  can  only  elect  where  the  majority  with  full  opportunity  to  vote  as  they 
chose,  unrestrained  by  undue  influences,  refrained  through  apathy  or  neglect  from 
voting.  But  when  undue  influf  nces  have  been  brought  to  bear  upon  the  mass  of 
voters,  and  they  have  voted  subject  to  these  influences,  although  the  full  extent 
of  these  influences  cannot  be  arrived  at,  the  entire  election  should  be  voided,  al- 
though a  minority  may  have  voted  free  from  such  Influences. 

This  report  was  recommitted  to  the  Committee  on  Elections  May  18, 
1878. 


May  18, 1878. — Mr.  Ellis,  from  the  Committee  on  Elections,  submitted 

the  following 

REPORT: 

The  first  Congressional  district  of  South  Carolina  is  composed  of 
«ight  counties — Sumter,  Darlington,  Williamsburg,  Georgetown,  Horry, 
Marion,  Marlborough,  and  Chesterfield. 

At  the  general  election  held  in  that  district  on  the  7th  of  November, 
1876,  John  S.  Richardson  and  Joseph  H.  Rainey  were  voted  for  to  rep- 
resent said  district  in  the  Forty-fifth  Congress.  According  to  the 
returns,  as  filed  in  the  office  of  the  secretary  of  state,  the  note  was  as 
follows : 


In  Darlington  County 

In  Sumter  Connty   

In  Willianisbure  Coanty  , 
In  Georgetown  Connty... 
In  CheHterfleld  County  . .. 
In  Marlboi'oa<;b  County  . 

In  Marion  County 

In  Horry  County 

Total 


Coon  ties. 


Rainey. 

Bichardson. 

3,614 

2,747 

3,849 

2,389 

2,371 

1,662 

2,684 

1,152 

981 

1,622 

1,609 

1.941 

2,502 

3.140 

593 

1,922 

18,103 

16, 575 

RICHARDSON    VS.    RAINET.  225 

Or  a  majority  for  contestee  of  1,528  in  the  entire  district.  Upon  this 
return  a  certificate  of  election  was  issued  to  him,  and  he  was  sworn  in 
and  occupies  the  seat  in  Congress  from  the  first  South  Carolina  dis- 
trict. 

Within  the  legal  time  the  contestant  filed  his  protest  and  notice  of 
contest,  claiming  that  certain  counties  of  said  district  should  be  rejected 
from  the  count  for  intimidation,  violence,  and  military  interference  with 
the  said  election,  and  that  certain  polls  in  said  counties  should  be  re- 
jected for  various  informalities,  which  are  fully  set  foith  in  his  notice  of 
contest. 

Without  burdening  this  report  with  the  notice  of  contest,  which  is 
found  on  pages  1-11  of  the  report,  the  grounds  upon  which  contestant 
bases  his  contest  are  substantially  as  follows  : 

1st.  That  the  Government  of  the  United  States  without  cause,  other 
than  to  influence  the  result  of  the  election  in  the  interest  of  contestee 
and  the  Republican  party,  sent  troops  to  many  polling  places  in  four 
counties  of  the  first  district,  and  that  the  effect  of  the  presence  of  said 
armed  forces  of  the  United  States  was  such  as  to  greatly  influence,  if 
not  to  change,  by  intimidation,  the  result  in  said  counties. 

2d.  That  the  presence  at  the  polls  and  the  attendance  at  political 
meetings  during  the  canvass  of  colored  militia  armed  and  organized, 
and  the  general  arming  of  colored  clubs  and  their  threats  against  colored 
Democrats,  created  such  alarm  and  intimidation  as  to  materially  aftect 
the  result  of  said  election,  and  not  wholly  to  change  it. 

3d.  That  the  intimidation  and  threats  of  social  and  religious  ostra- 
cism and  persecution  made  by  colored  Republican  social  and  religious 
organizations  materially  affected  and  changed  the  result  of  the  election 
in  said  counties. 

4th.  Contestant  urges  the  following  grounds  of  objection  to  the  count- 
ing of  certain  polls  in  certain  counties,  as  follows : 

In  Darlington  County,  as  follows  : 

Ist.  In  that  the  managers  of  election  appointed  for  the  various  precincts  established 
in  said  couuty  did  not  comply  with  a  condition  precedent  to  their  action  as  snch 
managers,  inasmuch  as  no  oath  taken  and  subscribed  by  any  of  them  was  tiled  in  the 
oflfice  of  secretary  of  state,  as  required  by  law,  there  being  at  the  time  no  clerk  of 
said  county  duly  qualified  with  whom  said  oaths  could  be  hied. 

2d.  In  that  Federal  officers  (deputy  marshals  and  others),  intense  Republican  par- 
tisaufj,  made  tise  of  the  presence  of  troops  in  said  county  to  intimidate  electors, 
whereby  at  every  poll  iu  said  county  large  numbers  were  overawed — some  kept  from 
the  polls  altogether,  and  others  forced  to  vote  the  Republican  ticket  against  their  will. 

3d.  In  that  the  State  militia  and  other  armed  Republicans  collected  large  numbers 
of  State  and  private  arms  at  and  near  the  points  at  which  polls  were  opened  at  the 
precincts  established  at  Darlington  Court-House,  Society  Hill,  and  Florence.  The 
collection  of  arms  at  the  polls,  as  stated  in  this  specification,  was  with  the  knowl- 
edge and  (iu  one  instance  at  least)  upon  the  suggestion  of  deputy  marshals  of  the 
United  States  of  America,  all  Republicans. 

1.  That  at  Manchester  precinct  the  ballots  cast  were  not  counted  according  to  law. 

1.  That  at  Concord  precinct  one  William  J.  Andrews,  who  was  candidate  upon  the 
Republican  ticket,  and  is  returned  aselected  to  a  seat  in  said  assembly,  was  and  acted 
as  one  of  the  United  States  supervisors  of  election. 

1.  That  at  Wedgefield  precinct  one  Mansfield  McLatirin,  who  was  appointed  and 
acted  as  clerk  of  the  board  of  managers,  did  not  take  the  oath  of  office  prescribed  by 
law  jis  a  condition  precedent  to  be  taken  by  said  clerk,  and  that  a  poll-list  was  not 
kept  at  said  precinct  according  to  law. 

1.  That  the  poll  at  Johnston's  Store  precinct  was  not  opened  at  the  hour  designated 
by  law  nor  for  fifty  minutes  thereafter. 

2.  That  Hampton  Cain,  who  was  appointed  and  acted  as  clerk  of  the  board  of  man- 
agers at  this  precinct,  did  not  take  the  oath  of  office  prescribed  by  law  as  a  condition 
precedent  to  be  taken  by  such  clerk. 

3.  That  a  poll-list  was  not  kept  at  this  poll  according  to  law. 

H.  Mis.  58 15 


226  DIGEST    OF    ELECTION    CASES. 

4.  That  the  ballots  cast  at  this  precinct  wore  uot  counted  according  to  law,  but  only 
the  number  of  tickets  were  counted,  and  no  account  or  tallj-list  of  the  ballots  cast 
for  any  person  or  persons  voted  for  was  kept  by  either  manager,  supervisor,  or  clerk 
of  the  managers  at  said  Johnston's  Store  precinct. 

5.  That  the  managers  of  this  precinct  did  not  proceed  immediately  at  the  close  of 
the  election  to  count  the  ballots  cast,  but  did  there,  contrary  to  law,  adjourn  their 
board  for  some  time,  to  wit,  twenty  minutes,  before  proceeding  to  count  said  votes. 

1.  That  at  Privateer  precinct  the  managers  did  not  open  the  poll  at  the  hour  fixed 
by  law  for  opening  the  same  nor  for  one  hour  and  a  half  thereafter. 

2.  That  the  person  who  acted  as  clerk  at  this  precinct  did  uot  take  the  oath  of  office 
prescribed  bylaw  for  such  clerk  to  take,  and  that  no  poll-list  was  kept  according  to 
law. 

3.  The  managers  of  election  at  said  Privateer  precinct  failed  to  administer  to  each 
and  every  person  who  voted  thereat  the  oath  required  as  condition  precedent  bylaw 
to  be  administered  to  each  person  ottering  to  vote  at  said  election  nor  was  such  oath 
taken  by  any  person  who  voted  at  said  precinct ;  and  that  a  large  number  of  persons, 
to  wit,  two  hundred  and  fifty-two,  were  then  allowed  to  vote,  antl  did  vote  without 
taking  such  oath. 

1.  That  at  Stateburgh  precinct,  one  George  Patterson,  who  acted  asclerk  of  the  board 
of  managers  of  such  poll,  did  not  take  the  oath  of  office  prescribed  as  a  condition 
precedent  by  law  to  be  taken  by  such  clerk,  and  that  a  poll-list  was  not  kept  at  such 
poll  according  to  law. 

1.  That  at  Carter's  Crossing  precinct  H.  G.  Shavr,  who  was  not  a  manager,  acted 
as  clerk  of  the  board  of  managers  without  taking  the  oath  of  office  prescribed  as  a> 
condition  precedent  by  law  to  be  taken  bj'  such  clerk,  and  that  the  poll-list  kept  at 
said  poll  was  kept  by  him,  and  was  not,  therefore,  such  poll-list  as  was  required  by 
law. 

That  the  board  of  county  canvassers  of  said  county  did,  contrary  to  law,  open  many 
of  the  boxes  containing  the  ballots  cast  after  said  boxes  had  been  sealed  by  the  man- 
ager; that  is  to  aay,  the  boxes  of  the  following  precincts,  to  wit:  Sumter  No.l,  Pri- 
vateer, Stateburgh,  Providence,  Rafting  Creek,  Spring  Hill,  Bishopville,  Lynchburgh, 
Shiloh,  Mayesville,  Johnston's  Store,  and  Swimming  Pens ;  and  that  ballots  deposited 
In  some  of  said  boxes,  to  wit,  those  of  Rafting  Creek,  Stateburgh,  and  Privateer,,  were 
counted  by  said  canvassers  after  opening  said  boxes  as  aforesaid. 

That  United  States  troops  were  stationed,  immediately  before  and  during  such  elec- 
tion, in  said  county  of  Sumter,  to  wit,  at  Sumter  Court-Houso,  and  did  intimidate, 
overawe,  and  force  many  persons  to  vote  the  Republican  ticket  and  for  the  said  Rainey, 
and  prevent  many  other  persons  from  voting  for  this  contestant  who  would  otherwise 
have  voted  for  him. 

That  a  large  number  of  persons,  to  wit,  eight  hundred  persons,  who  voted  more  than 
once,  or  who,  though  not  qualified  to  vote,  were  allowed  to  vote  and  did  vote  at  th* 
various  polls  in  said  county  in  said  election. 

That  this  contestant  therefore,  and  for  the  reasons  stated,  asks  and  demands  that 
the  ballots  cast  at  the  said  several  polls  in  said  county  of  Sumter  shall  be  rejected  and 
entirely  excluded. 

In  Georgetown  County 

Ist.  In  that  the  commissioners  of  election  for  said  county  met  and  organized  as  a 
boardof  county  canvassers  on  the  8th  day  of  November,  1876>  instead  of  the  Tuesday 
next  following  said  election,  as  plainly  directed  by  the  fifteenth  section  of  chapter  8- 
of  the  general  statutes  of  the  State. 

2d.  In  that  neither  the  chairman  of  the  board  of  managers  nor  one  of  them  to  be 
designated  in  writing  by  the  board,  did  deliver  to  the  commissioners  of  election  the 
poll-list,  the  boxes  containing  the  ballots,  and  the  written  statement  of  the  result  of 
the  election  in  his  precinct ;  and  this  is  true  .as  to  each  and  every  precinct  in  said 
county,  contrary  to  the  explicit  directions  of  the  Ihird  section  of  the  act  of  1872  (15 
vol.  Stat.,  page  171). 

3d.  In  that  the  county  board  of  State  canvassers,  as  such,  did  receive  from  persona 
other  than  the  several  precinct-chairmen  of  board  of  managers,  or  one  of  them  desig- 
nated in  writing,  the  poll-list,  the  boxes  containing  the  ballots,  and  the  statement  of   ' 
the  result  of  the  election  at  the  several  precincts  in  said  county. 

4th.  In  that  said  board  refused  to  receive  the  protest  of  the  citizens  of  the  county 
and  consider  the  same,  with  the  proofs  ottered  to  sustain  them,  against  the  illegal  con- 
duct of  the  said  election  at  the  Santee,  Brown's  Ferry,  Brooks  Green,  and  other  elec- 
tion precincts  in  said  county. 

5th.  In  that  said  ))oard  actually  refused  to  count  the  votes  of  the  county,  as  pro- 
scribed in  the  sixteenth  section  of  chapter  8,  general  statutes,  page  31. 

6th.  In  that,  having  refused  to  count  the  votes  of  the  county,  the  said  board  never- 
theless violated  the  sanctity  of  the  seals  of  the  boxes  containing  the  ballots,  and  took 
from  said  boxes  certain  papers  contained  therein. 


RICHARDSON    VS.    RAINEY.  227 

7th.  In  that  the  said  election  was  illegally  couductt;d  in  alnio.st  every  respect  re- 
quired by  the  laws  of  the  State,  and  the  refusal  of  said  board  to  hear  the  citizen  in 
defense  of  his  rights,  based  upon  proofs  of  said  illegality,  is  a  blow  at  the  purity  of 
elections,  the  safeguard  of  the  elective  franchise,  and  at  liberty  itself,  and  so  utterly 
inconsistent  with  the  principles  of  a  goverument  of  the  people,  fox  the  people,  as  to 
merit  the  rebuke  of  every  functionary  of  the  government  whose  duty  it  is  to  pass  upon 
their  conduct. 

8tb.  In  that  the  poll-list,  the  boxes  containing  the  ballots,  aiid  the  statement  of  the 
result  of  the  election  at  the  several  precincts  in  the  said  county,  were  kept  and  trans- 
ported after  the  election  by  persons  other  than  the  chairman  of  the  board  of  managers, 
or  one  of  them,  designated  in  writing  before  the  said  poll-lists,  boxes,  and  statements 
were  <lelivered  to  the  county  canvassers. 

1st.  In  that  at  Grier's  precinct  the  board  of  managers  of  election  were  not  properly 
organized  as  «uch  as  the  law  requires ;  they  were  not  sworn  as  managers,  nor  was  the 
clerk  of  the  board  sworn  according  t*)  law. 

1st.  In  that  at  Birdville  precinct  the  board  of  managers  of  election  were  not  prop- 
erly organized  as  such  as  the  law  requires ;  they  Avere  uot  sworu  as  managers,  nor  was 
the  clerk  of  the  board  sworu  according  to  law. 

1st.  lu  that  at  Sautee  precsinet  the  board  of  managers  of  election  was  not  properly 
organized  as  such  as  the  law  requires;  they  were  not  regularly  sworn  as  managers, 
nor  was  the  clerk  of  the  board  sworu  according  to  law. 

1st.  In  that  at  Brown's  Ferry  precinct  the  said  poll  was  managed  and  conducted  by 
only  two  managers,  oue  only  of  whom  was  sworn  to  conduct  and  manage  the  said  elec- 
tion according  to  law  in  such  case  made  and  provided. 

Ist.  In  that  at  Brown's  Ferry  precinct  the  board  of  managers  of  election  was  not 
properly  organized  as  such  as  the  law  required ;  they  were  not  regularly  sworu  accord- 
ing to  law. 

'^d.  In  that  the  ballot-box  frtmi  the  Brown's  Ferry  poll  waa  carried  by  one  of  the 
managers  of  election  to  the  house  of  J.  Ilawley  Jones,  who  is  a  candidate  (upon  the 
Republican  ticket,  aud  a  political  friend  of  said  Rainey  )  for  election  as  county  commis- 
sioner, and  remained  therr  some  time  before  being  turned  over  to  the  commissioners 
of  election.  That  said  box,  when  turned  over,  had  every  indication  of  having  been 
tampered  with. 

1.  In  that  at  Brooks  Green  precinct  the  board  of  managers  of  election  were  not 
properly  organized  as  such  as  the  law  requires:  they  were  not  regularly  sworn  as 
managers,  nor  wa^j  the  clerk  of  the  board  sworn  according  to  law. 

Because  there  was  at  the  polls  above  mentioned,  to  wit,  at  Santee,  Brown's  Ferry, 
Brooks  Gieen,  Griei-'s,  and  Birdville,  intimidation  of  the  electors  (both  before  and 
duriug  the  election)  who  desired  to  vote  the  Democratic  ticket,  by  threatening  and 
violent  language  and  conduct,  to  such  an  extent  that  the  electors  were  prevented  from 
giving  free  expression  of  their  choice  of  candidates  in  casting  their  votes,  to  wit,  at 
least  six  hundred  voters.  Because  a  large  number  of  persons,  to  wit,  five  hundred 
persons,  who  voted  more  than  once,  or  who,  though  not  qualified  to  vote,  were  allowed 
to  vote  and  did  vot-:  at  the  various  polls  in  said  county  at  said  election. 

The  contestant,  therefore,  and  for  the  reasons  stated,  asks  and  demands  that  the 
ballots  cast  at  the  said  several  polls  in  the  said  county  of  Georgetown  shall  be  rejected 
and  entirely  excluded. 

In  Williamsburgh  County: 

Ist.  B<*cause  there  waa  iuatigur.ated  in  said  county  an  extended  terrorism,  especially 
over  colored  electors,  on  the  part  of  the  colored  citizens  of  said  county,  both  male  and 
female,  all  Republicaus,  and  the  political  friends  of  the  said  Rainey,  resulting  in  the 
intimidation  of  great  numbers  of  colored  electors,  and  in  preventing  the  said  electors 
from  voting  the  Democratic  ticket  and  from  voting  for  this  contestant. 

•2ii.  Because  the  political  friends  of  the  said  Rainey,  at  various  voting-precincts  in 
said  county,  on  the  day  of  said  election,  and  on  various  days  preceding  said  election, 
by  threats  and  exhibitionsof  arms  aud  force,  intimidated  aud  compelled  colored  elect- 
ors to  vote  tlje  Kepublican  ticket  and  for  said  Rainey,  aud  intimidated  and  prevented 
other  colored  electors  from  voting  for  this  contestant. 

;>d.  Because  a  large  number  of  persons,  to  wit,  three  hundred  persons,  voted  more 
than  once,  or  who,  though  uot  qualified  to  vote,  were  allowed  to  vote  and  did  vote  at 
the  various  polls  in  said  county  at  said  election. 

4t'n.  Because  a  poll  was  opened  at  Levy's  store,  iu  said  county,  on  the  day  of  said 
election,  with'iut  legal  authority  for  opening  or  holding  said  poll,  and  many  ballots, 
to  wit,  five  hundred  and  forty  ballots,  were  received  and  counted  as  conung  from  said 
illegal  poll. 

This  contestant,  therefore,  and  for  the  reasons  stated,  asks  and  demands  that  the 
votes  polled  at  said  Levy's  store,  and  the  said  illegal  votes  iu  said  county  of  Wiiliauu*- 
burgh,  be  rejected  and  entirely  excluded. 

Your  memorialist  claims : 


228  DIGEST    OF    f:LECTION    CASK.S. 

1st.  That  he,  the  said  John  L.  Kichardson,  has  rei-eived  a  majority  of  all  the  legal 
vot«8  cast  at  the  said  general  election  for  the  office  of  member  of  Cougress  from  the 
first  Cougressional  district  of  South  Carolina  to  the  Forty  fifth  Cougress  of  the  United 
States,  and  that  he  is  entitled  to  take  said  seat. 

2d.  That  the  said  Joseph  H.  Raiuey  has  not  received  a  majority  of  the  legal  votes 
cast  for  said  office  at  said  election,  and  that  he  is  therefore  not  entitled  t-o  take  said 
seat  in  said  Conuress. 

M.  That  the  said  Rainey  has  not  the  prima  facie  right,  by  virtue  of  the  certificate 
he  holds,  'o  take  said  seat. 

4th.  That  in  the  event  your  honorable  body  shall  hold  that  this  contestant  is  not 
entitled  to  said  seat,  your  memorialist  claims,  for  the  various  reasons  set  forth  in  his 
grounds  of  contest,  that  said  seat  shall  be  declared  vacant. 

5th.  Contestant  further  objects  to  the  regularity  and  legality  of  the 
returns,  and  claims  that  the  certiticateof  the  contestee  base<l  thereon  is 
also  irregular  and  illegal. 

To  these  grounds,  and  the  notice  of  contest  based  thereon,  the  con- 
testee pleads  general  and  special  denial,  and  then  sets  up  connter-charges 
of  intimidation,  threats,  and  violence  at  various  polls  in  various  counties 
in  the  district  upon  the  part  of  contestant  and  his  political  friends, 
wherebj'  he  alleges  he  was  deprived  of  many  hundred  votes ;  and  he 
especially  objects  that  the  vote  of  HoTry  County  was  not  returned  in 
conformity  with  law.  Some  other  vague  allegations  of  voters  having 
repeated  their  votes  are  also  charged  by  him  as  having  been  done  at 
various  polling-places  to  his  prejudice. 

It  may  be  as  well  right  here  to  dispose  of  the  counter-charges  of  the 
sitting  member.  The  committee  fail  to  find  them  sustained  by  proof. 
Indeed  they  are  not  insisted  upon  in  the  very  able  and  elaborate  argu- 
ments, oral  and  written,  presented  bj'  the  distinguished  counsel  for 
contestee. 

The  eight  hundred  pages  of  printed  testimony  fail  to  show  a  single 
instance  of  intimidation  or  attempted  intimidation  upon  the  part  of 
contestee  and  his  political  friends.  The  evidence  shows  close,  compact 
organization  upon  the  part  of  the  Democrats ;  that  they  had  the  usual 
demonstrations ;  that  they  resorted  to  the  machinery  usual  in  political 
campaigns.  True  some  of  the  clubs  gave  certificates  to  colored  men  of 
their  membership  in  Democratic  clubs,  and  it  was  understood  that  such 
as  bore  these  certificates  should  have  preference  for  employment  and 
for  renting  lands. 

The  following  is  a  sample  of  the  avowal  of  the  Democrats  in  this  con- 
nection, and  is  taken  from  Record,  page  27 : 

SuMTKR,  S.  C,  October  25, 1876. 
The  Democratic  executive  committee  recommend  the  adoption  of  the  following 
pledge. 

J  D.  BLANDING, 
Chairman  Democratic  Executive  Committet. 
A.  W.  SuDER,  Secretary. 
I 
Thk  State  of  South  Carolina  : 

AVe,  the  undersigned,  citizens  of  Sumter  County,  hereby  pledge  ourselves  (each  for 
himself)  that  we  will  not  assist  or  extend  any  favor  to  any  person  of  either  race  or 
color  who  shall  vote  for  the  Republican  State  or  county  ticket  at  the  election  on  7th 
November  next;  and  that  we  will,  in  all  business  transactions,  give  the  preference  to 
such  persons  as  shall  vote  the  Democratic  State  and  county  ticket  at  said  election. 

The  committee  do  not  justify  or  vindicate  this  method  of  influencing 
voters.  It  is  wrong,  and  should  be  condemne<l.  No  influences  other 
than  appeals  to  reason  and  conscience  and  the  peaceful  attempt  to  en- 
lighten the  mind  and  influence  the  judgment  of  the  voter  should  ever 
be  resorted  to.  The  party  that  threatens  with  loss  of  employment, 
entailing  want,  privation,  and  suffering,  is  just  as  culpable  as  one 


RICHARDSON    VS.    RAINEY.  229 

who  resorts  to  bribery  to  accomplish  political  ends.  These  prefereuce 
pledges  and  threats  are  also  in  direct  conflict  with  section  5509  Revised 
Statutes  United  States.  It  is  a  sad  commentary  upon  the  political  con- 
duct of  our  times  that  such  influences  as  were  sought  to  be  exercised  by 
these  pledges  are  in  frequent,  almost  universal,  practice  in  every  sec- 
tion of  the  country. 

In  the  vast  factories  and  founderies  and  machine-shops,  even  in  navy- 
yards  and  custom-houses  and  Government  departments,  such  influences 
have  been  openly  practiced  and  tolerated  for  years.  But  neither  two 
wrongs,  nor  a  thousand,  can  make  a  right,  and  custom  can  never  give 
legal  sanction  to  practices  so  foreign  to  the  spirit  of  free  suffrage. 

With  regard  to  the  case  at  bar,  the  proof  shows  that  but  few  clubs  in 
the  contested  district  adopted  these  pledges,  and  none  carried  them 
out.  But  had  they  been  universally  adopted  and  carried  out  it  would 
but  strengthen  the  conclusion  arrived  at  by  your  comn  ittee,  and  fur- 
nish additional  reason  for  declaring  the  election  not  a  full  or  free  elec- 
tion, and  therefore  void.  Tlie  committee  conclude  this  point  by  declar- 
ing that  in  their  judgment  the  charges  of  intimidation  contained  in  the 
reply  of  the  sitting  member  are  iiot  sustained. 

In  considering  the  grounds  upon  which  contestant  bases  his  claim  to 
be  seated,  we  will  take  them  up  in  the  inverse  order  in  which  they  are 
hereinbefore  set  forth. 

It  will  be  remembered  that  the  fifth  ground  of  contest,  as  numbered 
in  this  report,  goes  entirely  to  the  certificate  of  the  sitting  member. 

This  objection  might  have  been  properly  urged  upon  a  contest  for  the 
prima  facie  right.  In  such  contests,  the  certificate  is  the  sole  considera- 
tion. But  the  House  of  Representatives  passed  upon  the  whole  ques- 
tion raised  by  this  objection  last  October,  when,  at  the  extra  session, 
it  voted  to  seat  the  contestee  upon  tha  prima  facie  right.  It  can  form, 
therefore,  no  proper  question  in  this  contest  upon  the  merits,  and  is 
therefore  not  entitled  to  further  consideration. 

The  fourth  ground  of  contest,  in  the  order  of  this  report,  embraces 
numerous  objections  to  the  counting  of  numerous  polls  in  various  coun- 
ties of  the  contested  district. 

The  irregularities  and  inlormalities  of  this  class  which  the  contestant 
regards  as  fatal  to  the  vote  in  difi'erent  counties  and  precincts  of  the 
district  are  the  following  :  A  failure  of  one  or  more  precinct  oflficers  to 
take  the  oath  of  office  prescribed  by  law,  a  failure  of  one  or  more  of 
the  precinct  officers  to  file  the  official  oath  in  the  office  of  the  secretary 
of  state ;  a  failure  to  appoint  a  clerk  of  election  according  to  law  ;  a 
failure  of  the  precinct  officers  to  organize  as  a  board ;  a  failure  to  keep 
a  poll-list  according  to  law  ;  a  failure  to  open  the  polls  at  the  hour  fixed 
by  law  ;  a  failure  of  the  clerk  to  take  the  oath  of  office  prescribed  by 
law;  the  fact  that  a  ballot-box  contained  more  than  one  opening;  the 
circumstance  that  but  one  United  States  supervisor  attended  the  elec- 
tion; an  adjournment  of  the  polls  during  the  day;  a  failure  to  keep  a 
tally-list ;  a  failure  to  count  the  ballots  immediately  after  the  close  of 
the  poll ;  a  failure  to  administer  the  oath  prescribed  by  law  to  the 
electors ;  the  fa<Jt  that  the  poll-list,  ballot-boxes,  and  statements  of 
results  were  not  delivered  to  the  county  canvassers  by  the  chairmen  of 
the  precinct  boards ;  the  refusal  of  the  county  canvassers  to  entertain 
and  decide  upon  protests  presented  by  electors  ;  the  fact  that  the  elec- 
tion was  conducted  by  two  instead  of  t'hree  precinct  officers,  and  the 
fact  that  the  county  canvassers  opened  the  ballot-boxes  when  they 
canvassed  the  votes,  ' 

These  objections  are  most  elaborately  set  forth  and  discussed  by  the 


230  DIGEST  OF  ELECTION  CASES. 

contestant  and  the  counsel  for  cont^stee.  It  will  be  observed  that  most 
of  the  objections  relate  to  violations  of  the  election  law  that  are  purely 
directory  in  their  character.  Their  violation,  if  no  fraud  be  shown  to 
have  resulted  therefrom,  cannot  vitiate  an  election.  It  is  wholly  differ- 
ent when  mandatory  provisions  of  an  election  law  are  violated.  In  the 
latter  case  the  election  is  void. 

But  the  voter  is  not  to  be  deprived  of  his  right,  and  the  citizens  are 
not  to  lose  the  result  of  an  election  fairly  held  because  of  some  unim- 
portant omission  of  form,  or  of  the  neglect,  carelessness,  or  ignorance 
of  some  election  officer,  or  the  failure  to  carry  out  some  unimportant 
direction  of  the  law.  {Vide  McCrary's  Law  of  Elections;  Cooley, 
Const.  Limitations;  Botts  v.  Jones,  1  Bartlett,  73;  People  v.  Cook,  4 
Selden,  67 ;  Taylor  v  Taylor,  10  Minn.,  107 ;  People  v.  Cook,  14  Bar- 
bour, 259  ;  Barnes  v.  Adams,  2d  Bartlett,  704;  Blair  v.  Barrett,  1  Bart- 
lett, 313 ;  Cox  V.  Strait,  decided  in  Forty-fourth  Congress,  and  other 
authorities.) 

Your  committee  find  that  the  irregularities  comjilained  of,  even  if 
true  in  every  particular,  are  infractions  of  directory  provisions  of  the 
law  and  are  unaccompanied  bj^  proof  of  fraud,  and  ought  not,  therefore, 
to  vitiate  the  election  of  themselves.  But  there  being  in  this  case 
graver  and  more  serious  causes  of  contest  the  committee  do  not  con- 
sider it  necessary  to  further  consider  the  various  irregularities  com- 
plained of  in  the  third  ground. 

We  come  now  to  consider  the  more  serious  issues  presented  by  this 
case,  which  are  in  the  order  of  this  report  set  forth  as  contestant's 
first,  second,  and  third  giounds  of  contest,  and  may  be  classed  under 
the  general  head  of  intimidation.  Under  the  evidence  in  this  case  it 
may  be  divided  into  three  kinds : 

1st.  The  intimidation  exercised  by  the  Government  of  the  United 
States  through  its  military  power,  in  sending  troops  into  the  election 
districts,  stationing  them  at  or  near  the  polls. 

2d.  The  terrorism  produced  by  the  armed  colored  Republican  clabs 
and  militia. 

3d.  The  religious  and  social  intimidation  produced  by  the  threats  of 
social  and  religious  ostracism  and  persecution,  on  the  part  ot  the  colored 
Republican  clubs  and  churches,  upon  the  colored  people  who  desired  to 
differ  from  them  politically. 

And  for  the  purposes  of  a  better  understanding  of  the  questions  now 
under  consideration  it  is  necessary  to  inquire  very  briefly  into  the  politi- 
cal and  ci\  il  condition  of  South  Carolina  and  trace  the  causes  which  led 
to  the  extraordinary  political  campaign  in  that  State  in  1876. 

Under  the  reconstruction  acts  a  band  of  adventurers,  pandering  to  the 
passions  and  prejudices  of  the  colored  race,  representing,  or  professing 
to  represent,  both  the  Government  of  the  United  States  and  the  Repub- 
lican party — the  oneha\ing  devised  the  idea  of  the  freedom  of  the  negro, 
and  the  other  having  enforced  the  idea,  inflaming  the  minds  and  hearts 
of  the  colored  race,  a  race  long  in  bondage  and  unused  to  political 
thought  and  action,  and  not  wise  enough  to  see  that  the  wily  adven- 
turers were  using  them  for  their  own  base  ends — succeeded  in  getting 
possession  of  every  department  of  the  government  of  unhappy  South 
Carolina.  Then  began  the  sickening  scenes  of  that  regime  of  theft  and 
robbery,  that  period  of  misrule  and  plunder  which  constitute  in  our 
history  its  saddest  picture." 

Under  the  new  regime  a  mob  of  men  assembled  as  a  legislature,  the 
individuals  composing  which,  with  a  few  exceptions,  were  unable  to 
read  or  write,  corrupt  at  heart,  intent  only  upon  such  legislation  as 


RICHARDSON    VS.    RAINEY.  231 

would  aflford  them  plunder,  imposing  upon  the  people  writs  of  confis- 
cation under  the  name  of  taxation,  selling  their  legislative  votes  and 
influence  as  coolly  as  the  tradesman  barters  his  wares,  deaf  to  every  in- 
terest of  the  stricken  State,  heedless  of  the  protestations  of  the  tax- 
payers and  property-owners,  callous  and  careless  of  every  voice  and  in- 
terest, save  the  voice  of  avarice  and  the  interest  of  their  insatiate 
greed. 

Judges,  under  this  regime,  went  upon  the  bench,  for  the  most  part 
ignorant  and  venal,  who  regarded  their  right  to  decide  in  causes  before 
them  as  so  much  personal  property  to  be  sold  to  the  highest  bidder. 

Governors,  under  this  strange  regime,  ascended  the  executive  chair, 
whose  sole  aim  was  to  get  the  largest  share  in  the  wholesale  plundering 
that  was  going  on  all  around  them,  and  who  regarded  their  signatures 
to  any  bill  before  them  and  their  right  to  appoint  ofiBcials  as  so  much 
merchantable  assets  that  they  might  dispose  of  to  their  greatest  per- 
sonal advantage. 

A  militia  was  organized,  composed  of  one  race  exclusively,  and  gov- 
ernment arms  were  placed  in  their  hands,  and  they  were  taught  as  the 
very  first  duty  of  the  South  Carolina  militiaman,  the  highest  creed  of 
their  code,  hatred  and  distrust  of  the  white  man. 

Eepresentatives  and  Senators  without  ability,  character,  or  honesty 
came  here  to  fill  the  ])laces  of  the  Calhouns,  the  Rhetts,  the  Hammonds, 
the  Lowndeses,  who  have  immortalized  the  eloquence  and  genius  and 
statesmanship  of  South  Carolina. 

In  order  that  the  work  of  plunder  and  misrule  might  go  on,  it  was 
necessary  to  keep  the  i)eople  of  the  great  North  ignorant  of  the  real 
condition  of  atiairs,  to  make  that  people  believe  that  the  peojile  of  South 
Carolina  were  still  rebellious,  still  filled  with  revenge,  still  resisting  the 
will  of  the  Government  with  regard  to  the  emancipation  and  enfranchise- 
ment of  the  colored  race ;  for  well  they  knew  that  if  the  real  truth  in 
regard  to  the  condition  of  affairs  in  the  plundered  State  ever  reached 
the  American  people  there  would  come  such  a  change  of  men  and 
measures  as  would  forever  check  their  career  of  crime  and  end  their 
work  of  si)oliation. 

To  foment  strife  between  the  races ;  to  array  black  against  white;  to 
invite  the  one  to  outrages  which  the  other  avenged  with  the  strong 
hand  ;  to  import,  as  Ex-Governor  Moses  has  recently  confessed,  roughs 
and  rowdies  from  Northern  cities  and  array  them  in  the  weird  garb  of 
the  Ku  Klux  Klan,  and  then  cause  them  to  commit  outrages  which  were 
charged  upon  the  white  race ;  to  arrest  white  citizens  upon  charge  of 
these  outrages,  and  convict  them  by  perjured  testimony  before  hostile 
juries  and  judges ;  to  make  of  the  State  a  vast  mint,  and  of  the  blood 
and  tears  and  sorrows  of  both  races  the  bullion  whereof  was  continually 
coined  the  newest  and  most  valuable  political  capital ;  such  was  the 
government  and  such  the  "love's  labors"  of  the  governors  and  rulers  of 
South  Carolina. 

And,  saddest  of  all  to  relate,  the  soldier  of  the  United  States  was  at 
intervals  employed  to  guard,  to  protect,  to  guarantee  this  the  most  mon- 
strous crime  in  the  name  of  liuman  government  that  ever  stained  earth 
or  shocked  high  HeaAen. 

The  debt  of  the  State  grew  larger  and  more  onerous,  values  shrunk 
apace,  taxation  increased,  labor  was  demoralized  and  disorganized,  and 
universal  bankruptcy  and  social  and  moral  ruin  threatened  the  people 
of  the  entire  State. 

Such  was  the  condition  of  aff'airs  in  1876  when  the  political  campaign 
opened.    The  white  tax-paying  people  of  the  State  knew  that  they  could 


232  DIGEST    OF    ELECTION    CASES. 

not  cany  the  State  aud  briug  back  the  rule  of  houesty  and  law  unless 
a  large  number  of  colored  men  joined  and  co-operated  with  them. 
Hence  they  nominated  their  purest  man  for  governor,  one  whose  name 
was  the  guarantee  to  every  man  in  South  Carolina  that  he  would  keep 
to  the  letter  every  pledge  he  made. 

The  campaign  was  to  be  one  of  conciliation  and  kindness  toward  the 
uegro,  a  great  effort  to  win  him  over  to  tlie  side  of  good  government 
and  honest  officials.  The  platform  of  principles  put  forth  by  the  sup- 
porters of  Hampton  were  broad,  catholic,  liberal. 

The  following,  taken  from  report,  pages  20  and  27,  illustrates  the  tem- 
per and  tone  of  the  Hampton  party  : 

Resolved,  That  we  organize  ourselves  into  a  Democratic  club,  to  be  known  as  "The 
Sumter  Democratic  Club ; "  that  in  order  to  do  so  we  enroll  our  names,  and  proceed  to 
elect  a  president,  two  vice-i)residents,  a  secretary,  and  a  treasurer;  that  the  iiurposes 
for  which  we  organize  are: 

Ist.  To  put  ourselves  in  accord  and  communication  with  the  national  Democracy. 

2d.  And,  as  of  the  highest  importance  to  us,  to  secure  an  honest,  fair,  aud  econom- 
ical admiuistration  in  our  county  and  State  aftairs;  and  to  etfect  this  end  we  pledge 
ourselves  to  abide  by  the  action  of  the  party  as  expressed  in  State  and  county  con- 
vention. 

M.  To  maintain  the  equal  civil,  political,  aud  religious  rights  of  all  citizens,  wiih- 
out  regard  to  their  color  or  previous  condition. 

4th,  That  in  the  reform  we  seek,  looking  to  the  welfare  and  interest  of  our  entire 
people,  honesty  and.  fitness  for  office  shall  be  the  first  consideration. 

5th.  That  with  this  end  in  view,  and  upon  this  broad  platform,  we  invite  all  of  our 
fellow-citizens  to  unite  with  us. 

Also  the  following,  taken  from  report,  pages  33  and  3  i : 

Offick  Sumter  County  Democratic  Executive  Committee, 

Sumter,  S.  C,  October  30,  1876. 
The  Democratic  executive  committee  of  Sumter  County  urges  all  Democrats  to  carry 
out  the  following  instructions: 

1.  To  avoid  all  measures  of  intimidation,  particularly  as  to  firing  of  guns  and  blow- 
ing of  horns  on  the  night  before  and  during  the  election.  The  party  is  solem  ily  com- 
mitted, by  all  its  protestations,  to  a  peaceful  election.  Demonstrations  of  a  peaceful 
eharacter,  to  keep  up  our  own  spirits  aiid  show  our  numbers  and  all  moral  forces, 
•hould  be  brought  to  bear  to  the  utmost  extent. 

2.  To  exercise  strict  vigilance  over  the  votes  and  the  polls,  and  by  all  means  to  be 
at  the  voting-precinct  in  full  force  before  6  o'clock  Tuesday  morniug. 

3.  To  look  out  especially  for  repeaters  and  the  putting  in  of  double  tickets,  keeping 
a  statement  of  such  cases,  aud  report  same  to  these  headquarters. 

4.  To  keep  one  of  our  lists  of  votes  and  of  the  state  of  the  polls,  and  report  same 
to  me  immediately  aftfer  the  box  is  closed.  Let  there  be  no  delay,  as  all  protests  must 
be  made  at  once. 

5.  Send  in  full  reports  from  each  poll  immediately  after  the  votes  are  counted. 

(5.  Each  Democratic  manager  is  requested,  in  person,  to  hand  me,  on  Wednesday 
morning,  a  copy  of  the  official  statement  of  the  count  of  his  poll. 

7.  Look  out  for  all  improper  practices  of  our  opponents,  and  be  prepared  to  prove 
them  if  necessary. 

8.  Let  it  be  publicly  understood  that  the  Democratic  executive  committee  will  indict 
all  persons  who  rote  Illegally. 

JAMES  D.  BLANDING, 
Chairman  Democratic  Executive  Committee. 

Peace,  harmony,  and  conciliation  were  the  watchwords  of  the  cam- 
paign and  its  spirit  as  from  the  party  of  Hampton  toward  the  colored 
race. 

In  this  spirit  the  Democratic  conventions  in  many  counties  nominated 
tickets  composed  equally  of  white  and  colored  men ;  colored  clubs  were 
organized;  colored  men  were  welcomed  in  Democratic  processions  and 
at  Democratic  meetings,  and  the  candidates  of  the  Democratic  party, 
trom  governor  down,  uttered  from  the  stump  the  most  conciliating  Ian- 


RICHARDSON    VS.    RAINEY.  233 

gaage.  Governor  Hamptou's  campaign  throughout  the  State  was  au 
ovation,  in  which  colored  and  white  men  joined,  and  perfect  peace  and 
tranquillity  reigned  in  the  State.  ( Vide  evidence  of  Hampton,  Conner, 
Wallace,  Hayne,  McMasters,  Moise,  E.,  pp.  242  to  249,  and  many  others.) 

Under  these  influences  the  colored  people  began  to  desert  the  Eepub- 
lican  party  and  to  join  the  Democratic  party  in  large  numbers.  Many 
of  the  better  class  of  colored  men  were  already  ripe  for  such  a  move- 
ment, having  been  disgusted  by  the  lawless  and  infamous  rule  of  the 
Republican  officials,  and  being  weary  also  of  strife  and  contention  with 
their  white  fellow-citizens. 

The  causes,  too,  which  had  led  them  in  the  earlier  days  of  their  en- 
franchisement to  herd  in  mass  with  the  Republican  party  were  becoming 
less  apparent.  The  colored  man  was  coming  to  feel  more  secure  in  the 
perpetuity  of  his  civil  and  political  freedom  and  less  distrustful  of  his 
white  neighbors,  and  he  was  willing  now  to  trust  the  government  of  the 
State  and  the  execution  of  its  laws  to  the  hands  of  white  men. 

The  campaign  by  the  middle  of  October  showed  the  most  tremendous 
exertions  and  the  utmost  enthusiasm  and  confidence  of  success  on  the 
part  of  the  Democrats,  and  weakness,  dismay,  and  demoralization  on  the 
part  of  Chamberlain  and  his  Republican  followers. 

Dismayed  at  the  thought  of  defeat,  which  suggested  not  alone  the 
wrenching  of  plunder  from  their  grasp,  but  also  the  possible  punish- 
ment of  many  of  the  plunderers  and  spoliators,  the  Republican  leaders 
resorted  to  the  most  desperate  means  to  stem  and  reverse  the  mighty 
tide  of  popular  feeling  that  was  running  so  strongly  against  them. 

They  counseled  together  and  resolved  to  pursue  the  policy  of  whole- 
sale intimidation  against  those  colored  people  who  dared  to  oppose  them, 
and  to  procure,  if  possible,  the  bringing  of  troops  into  the  State.  The 
latter  was  necessary  to  their  ends  for  two  reasons :  First,  to  prevent  the 
white  clubs  from  protecting  the  colored  Democrats;  and,  secondly,  to 
overawe  and  imi)ress  the  ignorant  minds  of  the  colored  people  with  the 
idea  of  power,  and  that  the  military  arm  of  the  Government  was  on  the 
side  of,  and  to  be  used  in  behalf  of,  the  Republican  party.  The  process 
of  intimidation  by  Republican  organizations  against  colored  Democrats 
was  to  be  eftected,  first,  by  threatening,  intimidating,  and  maltreating 
them,  and  terrorizins:  them  by  means  of  armed  colored  organizations, 
and,  secondly,  by  bringing  to  bear  upon  them  the  fear  of  social  and  re- 
ligious ostracism. 

It  will  not  be  denied  that  these  modes  of  electioneering  are  against 
the  spirit  of  free  institutions  and  against  the  laws  of  the  United  States. 
In  giving  to  the  citizen  the  right  to  vote  at  all,  the  right  to  vote  as  he 
chooses,  free  and  untranimeled,  was  necessarily  included.  It  does  not 
require  any  active  constraint  of  the  body  to  make  out  a  case  of  intimi- 
dation. It  need  not  be  that  there  is  at  the  time  of  voting  the  presence 
of  threats,  or  of  force,  or  the  present  fear  of  actual  bodily  hurt.  The 
genius  of  free  institutions  demands  that  the  mind  as  well  as  the  body 
shall  be  free  to  exercise  the  elective  franchise  as  the  voter  may  see  fit. 
The  fear  of  bodily  harm,  the  fear  of  social  ostracism,  the  fear  of  relig- 
ious wrath,  if  brought  to  bear  upon  the  body  of  voters,  or  if  exercis^ 
to  any  great  extent,  mar  the  pnritj'  and  destroy  the  freedom  of  elections, 
and  if  it  be  so  general  as  to  aftect  the  result,  or  if  from  it  the  real  result 
cannot  be  ascertained  from  the  returns,  the  election  is  void.  McCrary 
declares  (p.  328,  Law  of  Elections) : 

The  freedom  of  electious  is  of  the  utmost  importance.  The  laW  justly  regards  all 
attempts  to  interfere  with  the  electors  iu  the  peaceable  and  quiet  exercise  of  tlieir 
rights,  or  to  Improperly  influence  men  against  their  judgment  or  desire,  as  a  crime. 


234  DIGEST    OF   ELECTION   CASES. 

Under  this  rule,  most,  if  not  all,  of  the  States  have  enacted  statutes 
punishing  the  crime  of  bribery  at  elections,  and  the  laws  of  the  United 
States  punish  as  crimes  auy  undue  influence,  by  threats,  violence,  or  in- 
timidation, upon  the  mind  of  the  voter.  But,  again.  Judge  Cooley,  in 
his  work  on  Constitutional  Limitations  (p.  614),  declares : 

To  keep  every  election  free  from  all  the  influences  and  suiToundings  which  might 
bear  improperly  upon  it,  or  might  impel  the  electors  to  cast  their  sutfrages  otherwise 
than  as  their  judgments  wonld  dictate,  has  always  been  a  prominent  object  in  Ameri- 
can legislation. 

Again : 

If  the  violence  and  intimidation  has  been  so  extensive  and  general  as  to  render  it 
certain  that  there  has  been  no  fair  and  free  expression  of  popular  will  by  the  great 
body  of  the  electors,  then  the  election  must  be  set  aside,  notwithstanding  the  fact 
that  in  some  of  the  precincts  and  counties  there  was  a  peaceable  and  fair  election. 
(2  McCrary's  Law  of  Elections,  p.  326.) 

The  laws  of  the  States  and  of  the  United  States,  the  spirit  of  popular 
government,  the  laws  and  precedents  of  England  and  English  courts  all 
tend  to  the  principle  that  the  elector  shall  vote  and  vote  according  to 
the  dictates  of  his  judgment,  untrammeled  and  uninfluenced  by  any  im- 
proper influences.  Xot  only  has  intimidation  by  violence  and  threats, 
or  the  presence  of  armed  troops  at  or  near  the  polls,  or  of  armed  men 
other  than  troops,  and  bribery,  the  promise  of  advancement,  the  treating 
of  electors  to  influence  their  votes  been  held  as  causes  that  interfered 
with  the  freedom  and  purity  of  elections,  but  most  of  the  States  have 
laws  which  forbid  courts  to  be  held,  or  process  served  on  election  day, 
or  militia  musters  to  take  place,  accounting  that  these  might  be  used  as 
means  of  intimidation  or  of  improper  influence.  A  great  English  lawyer, 
who  is  standard  authority  upon  the  common  law,  has  written  that  "it  is 
essential  to  the  very  existence  of  Parliament  that  elections  should  be 
free;  wherefore  all  undue  influences  on  electors  are  illegal."  (1  Black- 
stone,  p.  177.)  And  in  a  recent  case  which  arose  in  Canada,  Mr.  Justice 
Eitchie  said: 

The  rights  of  individual  electors  are  the  rights  of  the  public.  *  •  •  xhe  public 
policy  of  all  free  constitutional  government*  in  which  the  electoral  principle  is  a  lead- 
ing element  (at  any  rate  in  the  British  constitution)  is  to  secure  freedom  of  election. 
•  *  *  A  violation  of  this  principle  is  equally  at  variance  with  good  government 
and  subversive  of  popular  rights  and  liberties.  (Brassard  etal.  v.  LangcAin,  Supreme 
Court,  Cana<ia.     Decided  January,  1877.) 

This  case  was  one  of  controverted  election.  It  arose  from  the  county 
of  Charlevoix,  in  which  an  election  for  member  of  the  Canadian  Parlia- 
ment was  held  in  January,  1876.  The  respondent  was  declared  elected. 
His  election  was  contested,  upon  the  ground  that  "undue"  spiritual  or 
religious  influence  had  been  exercised  by  the  priests  of  certain  parishes 
in  the  county,  under  the  ninety-fifth  section  of  the  election  act  of  1874. 
The  section  is  as  follows  : 

Sec.  95.  Every  person  who,  directly  or  indirectly,  by  himself  or  by  any  other  person 
■on  his  behalf,  makes  use  of,  or  threatens  to  make  use  of,  any  force,  violence,  or  restraint, 
or  inflicts  or  threatens  the  infliction,  by  himself  or  by  or  through  any  other  person,  of 
any  injury,  damage,  harm,  or  loss,  or  in  any  manner  practices  intimidation  upon  or 
against  any  person,  in  order  to  induce  or  compel  such  person  to  vote  or  to  refrain  from 
voting,  or  on  account  of  snch  person  having  voted  or  refrained  from  voting,  at  any 
election,  or  who  by  abduction,  duress,  or  any  fraudulent  device  or  contrivance  impedes, 
prevents,  or  otherwise  interferes  with  the  free  exercise  of  the  franchise  of  any  voter, 
or  thereby  compels,  induces,  or  prevails  upon  any  voter  to  give  or  refrain  from  giving 
his  vote  at  any  election,  shall  be  deemed  to  have  committed  the  otfensc  of  undue  in- 
fluence. 

The  proof  was  that  the  respondent  was  supported  by  all  the  priests 
of  the  Roman  Catholic  Church,  and  that  from  their  pulpits  one  priest 


RICHARDSON    VS.    RAINEY.  235 

had  declared  that  to  vote  against  respondent  and  for  bis  opponent  "was 
a  grave  sin,  a  matter  of  conscience."  Another  priest  characterized  such 
a  vote  as  a  "mortal  sin."  Another  said  that  with  "that  party  (the 
party  opposed  to  respondent)  in  power,  we  would  wade  in  the  blood  of 
priests;  that  the  horrors  of  the  French  revolution  would  be  re-enacted  ; 
that,  to  prevent  these  misfortunes,  liberalism  must  be  crushed  by  the 
people  and  the  clergy."  Another  declared  to  his  flock  "that  it  was  a 
sin  to  vote  for  the  liberal  party,  and  that  at  the  hour  of  death  those 
who  voted  for  that  party  would  regret  it."  Another  said,  "  Whoever 
votes  for  Mr.  Tremblay  (the  opponent  of  respondent)  would  be  guilty 
of  a  grave  sin,  and  if  he  died  after  so  voting  he  would  not  be  entitled  to 
the  services  of  a  priest."  There  was  no  proof  that  respondent  had  in- 
cited these  sermons.  But  the  court  had  no  difficulty  in  determining  the 
question  of  agencj',  and  said  : 

Decisions  in  Enfrlaiid,  the  election  law  of  which  is  identical  with  ours,  and  those 
rendered  in  Ontario  and  Quebec,  lay  down  the  principle  that  every  person  who,  in 
good  faith,  takes  part  in  an  election  for  a  candidate  with  his  consent,  becomes  ipso 
Jacte  an  agent  of  the  candidal*.  Upon  that  point  there  can  be  no  doubt;  and  the 
election  of  a  prominent  member  of  Parliament  was  annulled  in  consequence  of  the 
excessive  zeal  of  his  agents. 

All  these  sermons  [said  the  court],  accompanied  by  threats  and  declarations  of  cases 
of  conscience,  were  of  a  nature  to  produce  in  the  mind  of  a  large  number  of  electors 
of  the  county,  compelled  to  hear  these  things  during  several  consecutive  Sundays,  a 
serious  dread  of  committing  a  grievous  sin  and  that  of  being  deprived  of  the  sacra- 
ments. There  is  here  an  exerting  of  undue  influence  of  the  worst  kind,  inasmuch  as 
these  threats  an«l  declarations  fell  from  the  lips  of  the  priest  speaking  from  the  pul- 
pit in  the  name  of  religion,  and  were  addressed  to  persons  of  little  instruction,  and 
generally  well  disposed  to  follow  the  counsels  of  their  cur^s.  I  can  conceive  that 
these  sermons  may  have  had  no  influence  whatever  on  the  intelligent  and  instructed 
portion  of  the  hearers;  nevertheless,  I  have  no  doubt  but  these  sermons  must  have 
influenced  the  majority  of  jjersons  v«>id  of  instruction,  notwithstanding  that  by  reason 
of  the  secrecy  in  voting  by  ballot  ic  has  not  been  possible  to  point  out  more  than  six 
or  eight  voters  as  having  been  influenced  to  the  extent  of  affecting  their  will.  Ac- 
cording to  the  testimony  of  over  fifteen  witnesses,  a  very  large  nnmoer  changed  their 
opinion  in  consequence  of  this  undue  influence.  I  may  here  stato  that  in  like  cases, 
to  annul  an  election  a  large  number  of  cases  of  undue  influence  by  a  candidate,  or  an 
agent,  is  not  required,  and  that  one  single  case,  well  proved,  sutfices,  although  the 
candidate  availing  himself  of  it  may  have  had  an  overwhelming  majority. 

Taking  the  evidence  as  a  whole,  it  appears  clear  that  a  general  system 
of  intimidation  was  practiced;  that  as  a  consequence  undue  influence 
was  exercised  and  the  electors  did  not  consider  themselves  free  in  the 
exercise  of  their  elective  franchise.  Vide  Mayo  election  case,  1857; 
Longford  election  case ;  Galway  cases ;  case  of  county  of  Bonaventura. 

The  principle  of  all  the  decisions  in  all  these  cases  is  that  the  priest 
must  not  appeal  to  the  fears  of  his  hearers,  nor  say  that  the  elector  who 
votes  for  such  a  candidate  will  commit  a  sin  or  incur  ecclesiastical  cen- 
sures or  be  deprived  of  the  sacraments.  And  the  court  annulled  the 
election  and  declared  it  void. 

The  committee  have  quoted  extensively  from  the  decision  in  this  case 
inasmuch  as  the  principle  it  lays  down  as  well  as  the  principle  of  the 
authorities  it  cites  is  applicable  to  some  extent  to  the  ca«e  at  bar. 

The  colored  race  of  the  South,  through  no  fault  of  that  race — rather  let 
it  be  written  by  its  misfortune — is  ignorant  and  to  some  degree  super- 
stitious. A  strong  vein  of  religious  superstition  runs  through  the  char- 
acter of  that  race.  Most  of  them  are  members  of  churches,  and  the 
authority  of  their  priests  and  preachers  is  almost  absolute  in  all  social  and 
religious  matters.  Emancipated  but  a  short  time  ago,  dreading  above  all 
things  areturutoslavery,  ignorant  of  the  lastingcharacter  of  that  charter 
which  gave  to  him  his  liberty,  fearful  that  some  change  may  relegate  him 
to  his  former  condition  of  servitude,  with  but  little  will  of  his  own,  depend- 


236  DIGEST    OF    ELECTION    CASE^. 

ent  for  his  social  and  political  guidance  upon  bis  spiritual  advisers  of  liis 
own  race  or  the  counsels  of  those  of  the  dominant  race  who  profess  utter 
sympathy  with  all  his  passions  and  prejudices,  the  colored  race  of  the 
South  constitutes  an  element  most  liable  to  be  intiuenced  by  the  arts  of 
the  demagogue  or  the  chicanery  and  hypocricy  of  priestcraft.  To  keep 
the  colored  man  in  ignorance,  to  pander  to  his  fears  and  hopes,  his  pas- 
sions and  prejudices,  to  separate  him  from  the  influences  of  his  former 
masters,  has  been  the  great  object  with  those  bad  men  who  have  been 
his  counselors,  advisers,  and  political  taskmasters  through  the  past  ten 
years.    They  never  appeal  to  his  reason  or  judgment. 

They  hold  up  before  his  excited  imagination  the  horrors  of  a  return  to 
slavery,  the  deprivation  of  his  social,  political,  and  religious  privileges; 
they  teach  him  that  the  white  man  is  his  enemy;  they  corrupt  and  uti- 
lize the  authority  of  the  colored  preachers,  and  threaten  with  loss  of 
church  privileges,  the  ostracism  from  society,  the  absolute  severance  of 
the  marital  tie,  those  who  act  or  vote  against  their  will. 

The  record  in  this  case  discloses  a  condition  of  moral,  social,  and  re- 
ligious intolerance  and  intimidation  exercised  by  the  adherents  and  po- 
litical friends  of  the  sitting  member  in  the  first  Congressional  district  ot 
South  Carolina  that  renders  the  idea  of  freedom  of  thought  and  opinion, 
the  idea  of  free  political  action,  on  the  part  of  the  colored  race,  an  utter 
mockery  and  delusion. 

Preachers  preached  against  the  Democratic  party.  Threats  of  "turn- 
ing out  of  the  church"  those  who  acted  and  voted  with  that  party,  threats 
of  divorce  from  wife  and  separation  from  children,  threats  of  social  os- 
tracism, were  indulged  throughout  the  entire  district.  Colored  women 
assaulted  and  heaped  epithets  upon  those  men  of  their  own  race  who 
dared  to  act  with  the  Democratic  party.  Colored  men  were  told  that 
there  was  for  them  no  social,  moral,  or  religious  existence  or  atfiliation 
with  their  own  race  if  they  acted  or  voted  otherwise  than  in  obedience 
to  the  behests  the  Republican  leaders.  It  is  even  shown  in  the  record 
that  the  sitting  member  declared  that  all  colored  men  who  acted  with 
the  Democratic  party  "  should  be  treated  as  enemies."  And  this  feeling 
and  these  appeals  were  not  confined  to  any  particular  or  isolated  com- 
munity or  portion  of  the  district,  but  existed  and  were  exercised  through- 
out the  entire  district.  Your  committee  feel  constrained  to  declare  that 
undue,  illegal,  and  improper  influences  were  brought  to  bear  upon  the 
vast  mavss  of  colored  voters  throughout  the  first  Congressional  district 
of  South  Carolina,  and  while  the  proof  of  the  extent  of  the  influence  and 
of  its  control  cannot  be  arrived  at  with  any  degree  of  accuracy  from  the 
evidence,  yet  suflflcient  is  shown  to  leave  no  doubt  but  that  these  undue 
influences  were  widely  felt,  and  prevented,  in  the  district  in  contest,  a 
free,  fair,  and  full  election. 

But  if  any  doubt  were  left  in  the  minds  of  your  committee  of  the  per- 
fect propriety  of  declaring  the  election  in  the  first  South  Carolina  dis- 
trict null  and  void  for  the  grounds  heretofore  examined,  the  doubt  is 
solved  because  of  the  wholesale  intimidation  practiced  by  armed  colored 
clubs  and  organizations  during  the  campaign  and  at  tlie  polls  on  elec- 
tion day.  The  evidence  is  clear  that  throughout  the  district,  and  in 
nearly  every  precinct  of  the  district,  these  organzations  existed.  They 
were  armed  with  the  State  arms  for  the  most  part,  but  many  had  pri- 
vate arms.  They  went  to  their  political  meetings  with  arms  in  their 
hands,  and  at  many  of  the  polling  places  they  appeared  on  election  day 
in  organized  force. 

So  intolerant  were  they  against  individuals  of  their  own  race  who  dif- 
fered with  them  politically  that  they  uttered  against  them  the  most 


RICHARDSON    V8.    RAINEY.  237 

terrible  threats,  and,  in  some  cases,  resorted  to  actual  violence.  They 
denied  the  right  of  free  speech ;  they  tore  tickets  from  the  hands  of 
voters  and  substituted  others;  they  interfered  with  the  domestic  peace 
of  colored  Democrats  by  persuading  their  wives  to  leave  them,  and  left 
no  device  that  could  intimidate  unemployed  to  coerce  men  of  their  own 
«olor  into  voting  the  Republican  ticket.  Evidence  clear  and  indisputa- 
ble is  found  in  the  record  of  this  state  of  facts,  and  of  the  widespread 
influence  with  this  mode  (jf  electioneering  produced  in  the  minds  of 
the  colored  voters. 

It  will  not  suffice  to  meet  these  facts  by  saying  that  both  sides  resorted 
to  this  system  of  tactics.  The  record  does  not  sustain  the  charge  of  in- 
timidation generally  against  the  .Democratic  party  of  South  Carolina. 
The  proof  is  clear  that  they  i)ursued  the  policy  of  conciliation  for  the 
most  part.  Especially  was  this  the  course  that  characterized  the  cam- 
paign of  contestant. 

Governor  Hampton  testifies,  and  he  is  ami)ly  corroborated  by  other 
witnesses,  that  contestant  pursued  "the  extreme  policy  of  conciliation." 

But  grant  that  it  was  true.  Grant  all  that  is  claimed  against  the 
"  ritle  clubs''  and  other  organizations  of  the  white  people.  Grant  that 
they,  too,  i)ursued  the  lawless  policy  adopted  by  the  Republicans.  It 
but  affords  the  committee  more  and  stronger  grounds  for  declaring  the 
election  null  and  void.  TLe  committee  append  hereto  extracts  from  the 
testimony  of  a  few  witnesses  upon  this  point. 

Elmore  Dnrant,  colored  (Record,  pp.  84-85) : 

Question.  Did  yon  join  the  Deniorratic  party  during  the  last  campaign  and  vote 
that  ticket  ? — Answer.  I  did  both. 

Q.  Was  any  iulinence  brought  to  bear  on  you  or  anything  done  either  to  cause  yon 
to  vote  or  not  to  vote  that  ticket? — A.  I  was  frequently  warned  that  I  would  sofifer 
personal  injury  if  I  did  not  quit  the  Democrats  and  return  to  the  Republican  party. 
As  the  election  drew  near  it  got  hotter,  and  one  morning  I  found  a  written  paper  at  my 
door  which  warned  me  that  two  weeks  only  were  left  for  me  to  change  in,  when,  if  I 
did  not  return  to  the  Republican  party,  my  light  would  be  put  out. 

Q.  What  other  information  can  y<m  give  f — A.  1  was  working  at  town  ;  my  house 
was  2f  miles  from  town.  I  and  my  wife  had  lived  in  peace  until  I  joined  the  Demo- 
crats ;  we  have  parted  since  for  that  reason.  One  morning  my  wife  informed  me  that 
two  colored  men  came  along  on  horseback  and  said  that  I  would  not  be  on  that  road 
long,  unless  I  turued  from  the  Democrats,  and  my  wife  advised  me  to  return  to  the 
Republicans  or  I  would  be  killed  some  night.  My  wife's  father  (Dick  Moore)  cursed 
me  and  said  if  I  continued  to  stay  with  the  Democrats  I  ought  to  have  my  throat  cut. 
He  influenced  my  wife  to  dissatisfy  her,  and  at  last  I  slapped  her.  That  night  her 
father  Jidvised  her  to  leave  me,  calling  me  a  damned  Democrat.  My  wife  left  me  in 
September  or  1st  October,  and  on  the  ground  that  I  had  joined  the  Democrats. 

Isham  Robinson  (colored)  sworn  (Record,  p.  87) : 

Question.  When  did  yon  unite  yourself  with  the  Democratic  party  f — Answer.  In 
March  last. 

Q.  Tell  anything  that  was  said  to  you  to  make  you  vote  either  for  or  against  the 
Republican  party. — A.  Just  before  Hampton  made  his  speech  in  Sumter  they  came  to 
his  house  on  a  Saturday  night  and  set  tire  to  my  cow-pen  on  both  sides.  The  wind 
was  very  high  at  the  time.  I  ran  out  and  drew  the  fence  down,  and,  with  the  help 
of  my  family,  put  the  fire  out. 

Q.  Have  you  heard  any  threats  previous  to  your  cow-pen  being  set  on  firef — A.  I 
did  hear,  and  all  that  would  vot«  the  Democratic  ticket  would  be  bnmed  ont. 

(Objected  to  as  hearsay.) 

In  consequence  of  these  threats  I  set  up  and  guarded  my  premises  for  two  weeks 
thereafter,  and  did  not  votei  on  the  day  of  election. 

Q.  Any  other  threats? — A.  I  heard  it  said,  ''Old  Isham  Robinson  joined  the  Dem- 
ocrats, and  ought  to  be  whipped." 

Minus  Felder  (colored)  sworn  (Record,  p.  88) : 

Question.  When  did  yon  unite  yourself  with  the  Democratic  club  of  Snmter 
County  ? — Answer.  During  the  last  summer. 

Q.  State  what  inflncnces  were  brought  to  bear  upon  you  to  cause  you  to  vote  for  or 


238  DIGEST    OF    ELECTION    CASES. 

agaiust  the  Democratic  pai-ty.— A.  All  they  said,  when  1  caiue  to  vote,  a  woman  told 
my  wife  at  the  depot  that  if  I  voted  the  Democratic  ticket  I  must  not  come  hack  to 
the  house ;  and  when  I  lirst  joined  the  party  some  Repuhlicans  met  me  on  the  street 
and  told  me  that  I  was  in  danger  if  I  voted  the  Democratic  ticket. 
(Objected  to  as  hearsay  and  opinion.) 

Loudon  Sumpter  (colored)  sworn  (Record,  p.  88) : 

Question.  When  did  you  join  the  Democratic  party  ? — Answer.  In  March  last. 

Q.  Were  any  threats  or  influence  brought  to  bear  upon  you  to  cause  you  to  vote  for 
or  against  the  Democratic  party!  If  so,  state  them.— A.  The  day  before  the  election 
I  was  threat€ued  to  get  killed  if  I  voted  the  Democratic  ticket;  the  information  wa» 
brought  to  me  by  others. 

(Objected  to  as  hearsay.) 

Saw  that  Isham  Robinson's  premises  had  been  set  on  fire ;  while  canvassing  the 
county,  James  Gaston  told  me  that-  if  I  got  to  Weagefield,  where  I  had  an  appoint- 
ment to  speak  for  the  Democrats,  that  there  was  a  party  there  intending  to  horsewhip 
me  ;  that  while  going  to  Privateer  for  the  same  purpose,  I  was  informed  that  I  -Would 
be  murdered. 

Cross-examination : 
Q.  Would  you  have  been  afraid  to  testify  if  colored  men  had  been  present  T — A.  1 
would  not. 

Horace  Bradley  (colored)  sworn  (Record,  p.  92) : 

Question.  Did  yon  join  the  Democratic  party  ? — Answer.  I  did. 

Q.  Did  you  vote  the  Republican  ticket? — A.  I  did  vote  the  Republican  ticket; 
scratched  Mr.  Rainey's  name  off  and  inserted  Mr.  Richardson's  instead. 

Q.  You  say  you  joined  the  Democratic  club  ;  how  came  it  that  you  voted  the  Repub- 
lican ticket  ?— A.  They  told  me  if  I  voted  the  Democratic  ticket  they  would  throw  me 
out  of  the  brotherhood  society  and  pitch  me  out  of  doors  head  foremost. 

Q.  What  else  was  told  you  would  be  done  to  you  if  you  voted  the  Democratic 
ticket  ? — A.  Governor  Chamberlain  was  to  turn  out  all  the  convicts  in  the  peniten- 
tiary, and  all  the  colored  people  voted  the  Democratic  ticket  were  to  put  in  their  places  ; 
that  all  the  troops  would  drive  us  to  the  polls  and  make  us  vote  the  radical  ticket ; 
those  that  did  not  vote  the  radical  ticket  were  to  be  put  ou  a  list  and  go  to  the  peni- 
tentiary. 

Q.  Where  did  you  hear  that  talk  f — A.  Right  in  our  church,  at  the  society  meeting. 

Q.  Was  there  anything  said,  and,  if  so,  what,  about  turning  you  out  of  the  so- 
ciety t — A.  If  I  voted  the  Democratic  ticket  I  was  to  be  put  out,  or  if  I  put  an  addi- 
tional Democratic  name  on  the  ticket  I  was  to  be  put  out  also. 

Q.  What  was  it,  now,  that  caused  you  not  to  vote  the  Democratic  ticket? — A.  The 
reason  stated,  and  in  addition,  because  they  told  me  that  Chamberlain  was  to  erect 
large  stores  throughout  the  country  for  the  benefit  of  all  Republican  voters,  and  that 
the  ones  voting  the  Democratic  ticket  were  to  be  placed  in  fields  with  drivers  over  them 
and  the  children  to  be  put  back  into  slavery  ;  this  caused  me  to  take  my  name  off  the 
Democratic  club  list. 

Cross-examination : 
Q.  Was  this  brotherhood  a  political  club? — A.  It  wa«. 

Robert  Ross  (colored)  (Record,  p.  93): 

Question.  Were  any  threats  or  undue  influences  brought  to  bear  on  you  to  keep  you 
from  canvassing  the  county  for  the  Democrats  and  to  keep  yon  from  voting  the  Demo- 
cratic ticket?  If  so,  state  what. — Answer.  They  were.  1  was  told  that  if  1  should  go 
to  Privateer  to  speak  I  would  not  return  alive,  and  I  better  had  fast  hoi-ses  to  git 
away,  because  the  coons  down  there  said  they  don't  intend  to  allow  any  Democratic 
niggers  to  address  them  in  that  .section. 

(Objected  to  as  hearsay.) 

I  was  a  member  of  the  Union  Brotherhood  with  Abram  Rufiiau,  and  we  joined  the 
Democratic  club ;  they  turned  us  out;  would  not  hear  from  us  at  all,  and  threatened 
to  turn  us  out  head  foremost. 

Q.  What  reKsou  was  assigned  to  you,  and  who  by,  for  the  iutroduction  of  the 
troops? — A.  I  heard  it  from  the  court-house  ring  and  the  brotherhood  that  they  were 
brought  here  for  the  protection  of  the  Republican  party,  and  to  carry  the  election  for 
the  Republicans.     I  heard  this  right  at  tho  court-house. 

D.  E.  Keels  (Record,  p.  DC) : 

Question.  Was  there  any  intimidation  of  coh>red  voters  by  colon-d  ptop'e  which 


RICHARDSON    VS.    RAINEY.  239 

came  uuder  your  knowledge?  If  ho,  state. — Answer.  A  good  many  told  me  that  if 
colored  people  would  join  the  Democrats  they  would  whip  them  for  so  doing. 

Q.  Did  these  threats  deter  colored  people  from  joining  the  Democrats? — A.  Of  my 
own  knowledge,  I  do  not  know ;  but  colored  peo]ile  told  me  they  were  afraid  of  their 
own  color  to  join  the  Democratic  party,  and  some  said  that  their  wives  said  they 
would  quit  their  husbands;  others,  that  they  would  be  turned  out  of  churches. 

(Object  to  so  much  as  is  hearsay.) 

Robert  Broiin  sworn  (Record,  p.  97) : 

Question.  Were  you  a  manager  at  any  of  the  precincts  at  the  late  election? — Answer. 
I  was  not,  but  acted  as  the  Democratic  supervisor's  clerk  at  Manchester  poll,  and  was 
there  all  day  from  6  o'clock  a.  m.  until  the  polls  were  closed  that  night,  and  until 
after  the  votes  were  counted  and  certificates  made  out  and  properly  signed. 

Q.  During  the  day  did  anything  unusual  occur?  If  so,  state  what  it  was. — A.  I 
saw  arms  there  claimed  by  Republicans,  and  none  claimed  by  Democrats. 

Q.  What  kind  of  arms  and  what  were  they  you  alluded  to  ? — A.  Soon  after  opening 
of  the  polls  I  saw  colored  people  riding  up,  displaying  fire-arms  freely :  they  came  up 
in  squads ;  some  of  these  arms  were  deposited  on  a  wagon  without  a  body  on  it,  but 
only  a  slat  floor,  within  about  fifty  yards  ottand  in  full  view  of  the  polls. 

Q.  After  riding  up  to  the  polls  armed,  how  did  these  men  proceed  to  vote? — A.  Left 
their  arms  without  the  building,  crowded  in  the  house,  and  were  sworn  in  several  at 
the  time,  and  then  voted;  they  were  unusual  boisterous  about  the  polLj  aud  within 
different  distances  of  the  house. 

Q.  Were  any  persons  prevented  from  coming  there  to  vote  or  from  voting  the  Dem- 
ocratic ticket  there  tliak  day? — A.  Two  of  my  tenants  told  me  they  were  afraid  to 
vote  there  and  went  to  Wedgefield  to  vote. 

(Objected  to.) 

The  colored  manager,  Jack  Simons,  a  Republican,  and  chairman  of  the  managers^ 
cautioned  several  again.st  voting  any  but  the  Republican  ticket. 

Isaac  Haynemuth  (colored)  sworn  (Record,  p.  99) : 

Question.  How  did  you  propose  to  vote  in  the  recent  election  ? — Answer.  Demo- 
cratic. 

Q.  Wbich  way  did  you  vote  ? — A.  Radical. 

Q.  Why? — A.  Because  I  heard  that  they  were  burning  out  so  many  people,  it  kept 
me  back. 

Q.  Did  you  hear  of  any  other  thing? — A.  Yes;  I  heard  they  were  whipping. 

Q.  Who  was  it  they  said  they  would  whip  and  burn  out  ? — A.  The  Democrats. 

Q.  Where  did  you  hear  these  things? — A.  Through  the  whole  neighborhood. 

(Objection  to  all  hearsay.) 

Q.  Were  the  other  colored  people  on  the  same  place  wit  i  you  going  to  vote  as  you 
did? — A.  They  were  going  to  vote  the  Democratic  ticket,  and  refrained,  from  the 
same  rumors. 

(Objected  to  as  opiniou.) 

A.  RuflBn  (colored)  sworn  (Record,  p.  100) : 

Question.  Were  you  a  citizen  of  Sumter  County  aud  located  at  Sumter  during  the 
late  campaign  ? — Answer.  I  was. 

Q.  Did  you  canvass  the  county  as  a  member  of  the  Democratic  club? — A.  I  did. 

Q.  Do  you  knowof  any  intimidation  of  colored  Democrats? — A.  Soon  after  I  joined 
the  Democratic  party — I  had  been  for  a  long  time  a  member  of  the  Union  Brotherhood 
— I  attended  a  brotherhood  meeting,  which  was  turned  into  a  political  meeting  after 
the  brotherhood  business  was  over,  and  the  necessity  of  keeping  the  brotherhood 
together  for  political  purposes  was  shown  and  discussed.  I  was  pointed  out  as  one  of 
the  standard-bearers,  yet  had  gone  over  to  the  Democrats,  and  thus  sold  my  birthright 
and  my  children's  freedom.  I  tried  to  be  heard  in  my  defense,  aud  was  stopped  by 
cries  of  "Put  him  out,"  "Kill  him,"  &c.  After  that  time  the  colored  Republicans 
hooted  at  me  in  the  street,  and  they  turned  me  out  of  the  brothei'hood,  keeping  my 
means  which  I  had  pnt  in. 

Q.  What  was  the  brotherhood  formed  for? — A.  At  first  for  charitable  purposes,  and 
afterward  turned  into  political  association. 

Q.  Were  you  ever  imposed  upon  or  maltreated  for  your  Democratic  opinions? — A.  I 
was  treated  very  roughly  at  Mayesville,  abused  and  threatened  with  a  whipping.  At 
Sumter  I  was  informed  by  Mr.  J.  M.  Tiudall,  candidate  for  sheriff  of  the  county  on  the 
Republican  ticket,  and  at  that  time  the  sheriff,  that  if  I  went  to  Privateer  I  would  be 
whipped.  He  afterward  said  that  I  would  be  allowed  to  speak  if  I  agreed  that  he  was 
to  follow  me,  and  that  I  had  better  have  a  good  horse  to  get  away  on.  At  Wedgefield 
the  buggy  I  was  in  was  stopped,  aud  I  was  very  seriously  threatened.  The  Rev.  W. 
E.  Johnson  was  riding  with  me.  He  stopped  the  man  who  was  threatening  me  and 
Bent  him  away.     He  was  the  Republican  senator  for  the  county. 


240  DIGEST    OF    ELECTION    CASES 

Q.  Where  were  the  Union  Brotherhood  organized  f — A.  At  every  precinct  in  the 
county. 

Q.  bid  they  afterwai-ds  turn  out  with  political  organizations  of  the  Republican 
party  ? — A.  They  were  organized  a  good  while  before  the  campaign,  but  aft«r  the 
campaign  opened  they  turned  out  with  bauners,  representing  each  election  precinct 
in  the  county,  and  joined  the  Kepublican  processions. 

Q.  Were  you  present  at  Privateer  when  the  sheriff,  J.  M.  Tindall,  made  an  addrem 
to  the  Union  Brotherhood  T — A.  I  was. 

Q.  What  sort  of  a  speech  was  it  f — A.  A  political  speech. 

Q.  Who  else  spoke? — A.  Senator  Maxwell,  of  Marlborongh. 

Q.  Was  there  any  Union  Brotherhood  in  it  f — A.  None  that  I  heard. 

Q.  Do  you  know  of  any  threats  made  against  colored  people  for  affiliating  with 
Democrats? — A.  It  was  just  a  general  tantalizing  and  threatening  of  them.  Some 
preachers  never  closed  a  sermon  without  bringing  in  the  Democratic  darkies.  It  was 
the  common  cry  that  any  negro  who  joined  the  Democrats  ought  to  be  killed. 

Cross-examined : 

Q.  At  the  brotherhood  meetings  proper,  were  politics  discussed  ? — A.  No. 

Q.  Do  not  the  rules  forbid  ? — A.  They  do. 

Q.  Were  not  there  political  matters  discussed  after  the  brotherhood  had  adjourned  ? — 
A.  There  were. 

Q.  Does  the  brotherhood,  as  snch,  ever  transact  bnsiness  in  public  ? — A.  No,  sir. 

Q.  When  were  you  turned  out  of  the  brotherhood  ? — A.  I  can't  tell  the  day  of  the 
month ;  I  think  it  was  in  the  month  of  September. 

Q.  Who  ever  refused  you  admission  to  the  brotherhood  npon  your  presenting  your- 
self for  that  purpose? — A.  The  doorkeeper  at  the  district  meeting  ;  I  don't  know  his 
name. 

Q.  Was  you  ever  refused  at  any  other  time  when  you  went  there  and  knocked  ? — A. 
I  never  went;  the  doorkeeper  told  me  that  I  was  not  recognized  because  I  was  a 
Democrat. 

Q.  How  was  this  meeting  composed  ? — A.  Of  delegates  from  the  different  precinct 
brotherhoods. 

Q.  Were  any  persons  except  delegates  entitled  to  admission  ? — A.  Not  that  I  know  of. 

Q.  Were  you  a  delegate? — A.  I  was  not. 

Q.  You  speak  of  being  threatened  with  a  whipping  at  Mayesville;  is  it  not  a  fact 
that  the  threats  were  made  by  a  drunken  man  who  was  kept  off  by  other  Republi- 
cans?— A.  No,  sir;  the  threats  were  not  made  by  him;  they  were  made  by  those 
women  and  the  crowd  who  were  around  for  an  hour  before  he  came. 

Q.  Did  the  man  who  was  drunk  make  threats  ? — A.  He  pretended  to  be  drunk  •  he 
put  his  hand  on  my  Democratic  badge ;  he  said,  "  You  must  put  it  off;  we  don't  allow 
no  Democratic  niggers  here." 

Q.  Is  not  that  the  same  man  who  was  carried  off? — A.  He  was. 

Q.  Mention  the  preachers  whom  you  have  heard  preach  against  the  Democrats  ? — 
A.  I  have  heard  James  Whit«.     I  only  go  to  one  church.    He  is  the  only  one  I  heard. 

Q.  State  who  said  that  any  colored  man  who  voted  the  Democratic  ticket  should  be 
killed?— A.  I  heard  the  general  rumor  that  they  ought  to  be  killed.  Sam  MacDuflSe 
is  one  that  I  heard  say  so;  also  Moses  James.  Those  are  all  I  now  can  recall  to  be 
positive  about. 

Q.  Where  did  you  hear  Sam  MacDuffie  say  so? — A.  He  told  me  so  at  the  comer  of 
Mr.  Cohen's  store. 

Q.  Who  was  present? — A.  I  cannot  call  names.  I  saw  a  crowd,  but  don't  remember 
persons. 

Ralph  Wilson  (colored)  sworn  (Record,  p.  102): 

Question.  Were  you  a  resident  of  this  county? — Answer.  I  am. 

Q.  Were  you  here  during  the  last  campaign  and  election? — A.  I  was. 

Q.  Did  you  join  the  Democratic  party  and  vote  the  Democratic  ticket? — A.  I  did. 

Q.  Were  any  threats  made  against  you  for  joining  the  Democratic  party  and  for  de- 
siring to  vote  the  Democratic  ticket  ?  If  so,  state  what  threats,  and  who  made  by. — 
A.  They  threatened  to  whip  me,  and  threatened  also  to  burn  out  every  Democratic 
nigger;  further  stated  that  the  troops  came  here  to  make  them  vot«  for'the  Republi- 
can party. 

Q.  Who  did  you  hear  these  threats  from? — A.  A  great  many  from  the  Republicans 
of  Snmter. 

Q.  Was  it  or  was  it  not  a  fact  that  these  reports  and  threats  were  generally  circu- 
lated through  the  county? — A.  They  were  generally  talked  about  among  the  colored 
people. 

Q.  Do  you  know  whether  these  threats  and  talk  about  the  troops  prevented  colored 
people  from  voting  the  Democratic  ticket?— A.  I  don't  know,  but  the  colored  people 
seemed  to  be  very  much  afraid. 


RICHARDSON    Ve^.    RAINEY.  241 


CroBS-examiDatiou : 


<J.  Did  you  believe  that  the  troops  were  sent  here  for  the  purpose  of  making  colored, 
people  vote  the  Republican  tiekft  ? — A.  I  di«l  not. 

Redirect : 

Q.  Did  you  or  did  you  not  try  to  make  the  colored  people  think  the  troops  were  not 
Bent  here  to  make  the  colored  people  vote  the  Republican  ticket  ? — A.  I  did ;  every- 
where I  went. 

Q.  Did  you  succeed  in  doing  so? — A.  I  did  not;  a  great  many  of  them  believed  the 
other  way,  and  so  stated  to  me. 

Edward  D.  Shiver  (colored)  sworn  (Record,  p.  103): 

C^nestion.  Were  you  a  resident  of  this  county  dnring  the  late  campaign  and  the  day 
of  election  ? — Answer.   I  was. 

Q.  Did  you  canvass  the  county  and  take  an  active  part  for  the  Democratsf — A.  I 
certainly  did. 

Q.  Were  any  threats  made  to  you,  or  did  any  threats  come  to  you  for  being  a  Demo- 
crat and  desiring  to  vote  the  Democratic  ticket  ? — A.  There  was,  by  a  good  many ;  did 
not  pay  any  particular  attention  to  any  one,  I  being  a  free  man  to  do  as  I  please  about 
voting ;  they  told  me  if  1  voted  the  Democratic  ticket  I  could  not  stay  here,  but  should 
vote  the  Republican  ticket. 

Q.  What  threats  were  matle  to  you  in  Columbia? — A.  I  went  from  here  as  a  delegate 
to  the  convention ;  I  was  told  that  I  could  not  stay  there  that  night:  that  I  would  be 
killed  if  I  did. 

(Objected  to  that  as  not  applying,  because  Columbia  is  not  in  the  Congressional 
district. ) 

Q.  What  was  it  said  that  the  troops  were  brought  here? — A.  The  troops  were 
brought  here  for  the  purpose  of  keeping  the  niggers  from  voting  the  Democratic 
ticket.;  this  was  generally  circulated  amongst  the  colored  people. 

Cross-examination : 
Q.  Can  yon  name  any  one  who  threatened  you,  or  who  said  the  troops  were  brought 
here  to  make  the  colored  people  vote  the  Republican  ticket,  or  prevent  them  from 
voting  the  Democratic  ticket? — A.  I  cannot  name  any  particular  one. 

Thomas  D.  McLeod  sworn  (Record,  p.  104) : 

Question.  Are  you  a  resident  of  this  county t — Answer.  I  am;  of  Rafting  Creek 
precinct. 

Q.  Where  were  you  during  the  election  and  for  some  days  previous  thereto f — A.  I 
was  at  Rafting  Creek  precinct. 

Q.  If  you  saw  any  notices  posted  in  that  neighborhood,  what  were  they  t — A.  Abont 
three  miles  from  the  polling-place  I  saw  more  than  one  notice  posted ;  this  was  at 
Brykiu's  Depot,  in  Kershaw  County,  and  adjoining  Rafting  Creek  precinct. 

(Objected  to  as  not  being  in  this  Congressional  district.) 

Q.  Is  that  the  depot  where  the  people  of  your  section  ship  and  receive  their  mer- 
chandise?—A.  Yes,  it  is. 

Q.  How  frequent  is  the  intercourse  t — A.  Every  day. 

Q.  Did  you  see  any  other  notice?— A.  I  had  one  in  my  possession  within  one  mile 
of  our  precinct. 

Q.  What  was  the  character  of  the  notice? — A.  It  read  in  this  way:  "We  have 
formed  a  hand  of  lueu  to  whip,  four  in  hand,  every  colored  man  who  joins  the  Demo- 
cratic party  to  death,  and  after  whipping  four  in  hand,  to  cut  their  ears  off." 

Q.  Were  the  Republicans  armed  ? — A.  They  were,  with  muskets  and  shot-guns. 

Q.  Where?— A.  At  Rafting  Creek. 

Q.  To  whom  did  you  deliver  the  paper-notice  von  had  in  your  possession  ? — A.  To 
Dr.  E.  J.  Rembert.. 

Cross-exatnined  : 

Q,  Were  all  the  Republicans  armed  ? — A.  I  cannot  say  that  they  were  all  armed; 
the  guns  were  not  counted. 

Q.  How  many  did  you  see  armed  ? — A.  To  the  best  of  my  knowledge,  without  having 
made  any  count  on  the  spot,  about  one  hundred  and  fifty  muskets  and  shot-guns  were 
there.  ' 

Q.  How  many  muskets  and  shot-guns  did  you  see  there  ? — A.  I  did  not  count  what 
I  saw.  I  only  saw  one  wagon  with  muskets  and  shot-guns.  I  suppose  that  wagon 
contained  twenty-five. 

Q.  How  many  men  did  you  see  having  muskets  and  shot-guns  upon  their  persons f— 
A.  None. 

H.  Mis.  58 16 


242  DIGEST    OF   ELECTION    CASES. 

Redirect : 
Q.  Was  there  any  other  company  of  armed  men  ? — A.  I  heard  so,  but  did  not  see 
them. 

D.  A.  Foxworth  sworn  (Record,  p.  109) : 

Question.  Are  yon  a  resident  of  the  county,  and  were  you  during  the  last  election  t — 
Answer.  I  was. 

Q.  Was  there,  or  was  there  not,  a  wide  spread  intimidation  in  this  county  over  the 
colored  voters;  and,  if  so,  who  was  the  intimidation  exerted  by? — A.  Exerted  princi- 
pally by  the  radical  leaders  and  the  black. 

Q.  Were,  or  were  not,  the  colored  people  actually  afraid  to  vote  the  Democratic 
ticket  t — A.  Some  of  them  were.  Some  who  voted  with  the  Democratic  party  before 
-were  afraid  to  do  so  this  time,  and  staid  at  home. 

(Objected  to.) 

Q.  What  were  they  afraid  of? — A.  Afraid  of  the  threats  made  by  the  colored  people. 

Q.  What  were  those  threats  ? — A.  Various  threats.  Threatened  to  be  murdered, 
mobbed,  burned  out,  and  some  were  badly  beaten;  wives  threatened  to  quit  their 
husbands  if  they  voted  the  Democratic  ticket ;  in  one  instance,  a  woman  who  formerly 
belonged  to  me,  her  son  desired  to  join  the  Democratic  party,  and  she  threatened  to 
cut  his  throat.  Six  men  on  my  place  desired  to  vote  the  Democratic  ticket,  but  did 
not  vote  at  all  on  account  of  the  threats  made. 

(Objected  to  as  a  matter  of  opinion. ) 

Q.  Did,  or  did  not,  the  presence  of  the  United  States  troops  exert  an  influence  ad- 
Terse  to  the  success  of  the  Democratic  ticket  ? — A.  I  am  satisfied  it  did. 

(Objected  to  as  an  opinion.) 

Q.  If  the  troops  had  not  been  introduced  into  the  State  and  into  this  county,  what 
would  have  been  the  result  of  the  election  in  this  county  ? — A.  I  think  this  county 
would  have  been  carried  by  the  Democrats. 

(Objected  to  as  opinion.) 

Q.  Would  that  result  have  been  achieved  quietly  and  peaceably,  and  without  inter- 
fering with  the  free  right  of  suffrage? — A.  In  my  judgment  it  wouldhave  been  carried 
quietly  and  peaceably  and  without  interference  of  the  free  right  of  suffrage. 

(Objected  to  as  opinion.) 

Cross-examination : 

Q.  Is  it  not  a  fact  that  more  colored  people  voted  the  Democratic  ticket  at  the  last 
election  than  ever  before  ? — A.  I  think  they  did  in  the  State,  and  perhaps  in  the 
county. 

Q.  Did  you  hear  these  threats  you  speak  of,  or  do  you  only  testify  from  rumor? — A. 
1  heard  some  myself;  heard  one  woman  say  she  woxild  cut  her  son's  throat  if  he  joined 
the  Democratic  party,  and  heard  two  women  say  they  would  not  live  with  their  hus- 
bands if  they  voted  the  Democratic  ticket;  the  rest  of  the  threats  is  from  hearsay. 

Redirect: 

Q.  You  stated  as  your  opinion  that  more  colored  people  voted  the  Democratic 
ticket  in  the  State  and  county  than  ever  before ;  is  it  not  a  fact  that  there  never 
■was  a  Democratic  ticket  since  reconstruction  ? — A.  The  first  time  the  Democratic  ticket 
lias  ever  been  before  the  people  since  reconstruction. 

Q.  What  did  you  mean  by  saying  that  some  who  had  voted  the  "Democratic  ticket 
before  ?  " — A.  I  mean  who  had  voted  with  the  whites. 

(Objected  to  as  not  being  in  reply.) 

Q.  State  in  what  way  the  threats  of  burning,  murdering,  and  moBbing  those  colored 
men  who  voted  the  Democratic  ticket  came[to  your  knowledge. — A.  I  heard  the  colored 
people  converse  on  the  subject,  and  they  even  said  if  such  and  such  persons,  naming 
them,  would  join  the  Democrats  they  would  be  burned  out,  murdered,  mobbed,  &c. 

D.  A.  FOXWORTH. 

Sidney  W.  Dick  (colored)  sworn  (p.  110): 

Question.  Are  you  a  minister  of  the  gospel  ? — Answer.  I  am. 

Q.  Are  you  a  resident  and  a  voter  in  this  county  ?— A.  I  am.  « 

Q.  What  party  did  you  belong  to  during  the  last  campaign  ? — A.  The  Democratic 
party. 

Q.  What  churches  were  you  accustomed  to  preach  at  ? — A.  St.  John's  and  Shephard's 
Shed  Methodist  Episcopal  church. 

Q.  Was  anything  done  to  you  by  these  congregations  ?   If  so,  state  what  it  was,  and 
why  it  was  done. — A.  I  went  to  church  Sunday  in  October,  went  to  the  pnlpit  at  11 
o'clock  a.  m.     The  leader  called  out  of  the  pulpit,  outdoors,  and  asked  me  if  I  was 
going  to  vote  with  the  Democrats.     I  told  him  yes,  I  was  going  to  vote  for  Hampton  > 
and  for  every  man  on  the  ticket,     I  never  voted  for  Chamberlain  in  my  life.     Then 


RICHARDSON    VS.    RAINEY.  243 

Alfeiry  Sanders,  a  nieruber  of  the  same  congregation  and  a  school-teacher,  said  if  I 
would  vote  for  Hampton  that  I  should  not  jireach  for  these  people,  aud  they  should  not 
adu\it  me  into  the  pulpit.  Upon  this  the  trustees  called  a  meeting  for  consultation, 
aiul  voted  upon  it  in  the  church  that  I  should  not  preach  at  all,  and  they  never  have 
aJuce  allowed  nie  to  preach. 

Q.  Were  any  threats  made  against  j'ou  for  joining  the  Democratic  party?  If  so, 
fitate  them. — A.  Four  women  met  me  on  the  streets,  and  told  me  that  the  men  would 
whip  me.  Numbers  of  persons  I  met  on  the  highway  threatened  to  whip  me,  but  I  did 
not  pay  any  attention  to  them,  and  I  went  on. 

E.  M.  Harriot  (colored),  being  duly  sworn,  testified  as  follows  (p.  114)': 

Resides  in  Georgetown  County,  and  was  residing  there  at  the  last  election.  Was 
engaged  in  canvassing  the  county ;  was  a  candidate  on  the  Republican  ticket.  Early 
in  the  morning  went  to  the  Santee  poll,  before  it  opened,  and  remained  there  until 
about  8  o'clock  a.  m.  Went  to  this  poll  to  advocate  Chamberlain  aud  himself  for  elec- 
tion— himself  for  the  State  house  of  representatives.  Distributed  the  Jones  tickets, 
but  the  people  would  not  allow  them  distributed.  Saw  a  great  deal  of  fuss  aud  noise 
going  on  at  the  poll.  The  excited  crowd  would  not  allow  one  voter  and  others  to  vote 
for  this  deponent.  These  votes  were  taken  away  and  torn  up.  He  saw  that  his  re- 
maining there  would  cause  a  fuss,  since  the  general  manner  of  the  crowd  was  threat- 
ening, and  so  he  left  the  poll,  fearing  a  disturbance.  This  excited  crowd  did  not  allow 
the  voters  to  vote  as  they  pleased.  In  a  violent  manner  this  crowd  would  not  allow 
any  of  the  voters  to  take  tickets  from  this  deponent.  They  would  not  even  allow  him 
to  paste  a  slip  containing  his  own  name  over  any  one  on  the  regular  Republican  tickets ; 
but,  in  an  excited  manner,  would  let  him  have  nothing  to  do  with  the  tickets. 

He  did  not  vote  at  this  poll,  because  he  did  not  believe  he  would  be  allowed  to  vote 
ttshe  pleased.  These  parties  were  advocating  the  ticket  upon  which  J.  H.  Rainey  was 
a  candidate.  They  were  determined  that  no  other  ticket  should  be  voted  at  the  Santee 
poll. 

Saw  Joseph  Burt  at  the  poll,  who  would  meet  the  people  as  they  came  to  the  poll. 
Burt  was  the  distributer  of  the  tickets  at  the  Santee  poll.  These  tickets  were  given  to 
him  for  distribution  by  the  county  chairman,  who  was  Joseph  H.  Rainey.  These 
tickets  had  some  of  the  printed  names  scratched  out,  and  J.  A.  Bowly's  name  sub- 
stituted in  Bowly's  own  handwriting. 

Deponent  gave  a  large  number  of  tickets  to  a  large  number  of  voters.  He  saw 
many  of  these  tickets  torn  up.  Henry  Smith  told  him  there  was  no  use  to  distribute 
his  tickets  for  they  would  be  torn  up.  Deponent  swears  that  he  attended  the  i)oll  at 
ihe  Santee  precinct  on  the  7th  November  last ;  that  he  at  that  time  met  voters  who 
were  willing  to  vote  for  him,  aud  who  proposed  to  allow  him  to  substitute  names  on 
tickets.  He  changed  several  tickets,  but  the  crowd  around  would  not  allow  the 
voters  to  take  back  the  tickets  from  him.  The  manner  of  this  crowd  was  very  bois- 
terous and  rough.  Did  not  think  it  safe  for  him  to  remain  at  this  poll ;  thought  it  best 
to  go  away.  After  this  went  away  and  offered  voters  whom  he  met  other  tickets. 
These  tickets  were  taken  from  them  by  one  of  the  same  boisterous  party. 

Eli  Howard  (colored)  testified  as  follows,  after  being  duly  sworn  (p. 
116): 

That  he  knows  Joseph  Bnsh,  who  lives  on  Santee.  He  was  a  candidate  for  coanty 
commissioner  on  the  Republican  ticket.  Saw  Joseph  Bush  several  times  in  George- 
town before  election-day.  Heard  him  say  just  before  the  election,  while  speaking  to 
a  large  crowd,  that  if  any  one  was  damned  fool  enough  to  carry  Democratic  tickets  to 
the  Santee  poll  he  would  be  killed.  Previous  to  this  he,  Joseph  Bush,  told  this  depo- 
nent that  he  could  control  the  Sanree  poll  and  make  the  people  do  whatever  he  said; 
that  the  people  would  do  whatever  he  told  them.  He  explained  to  the  deponent  that 
on  oue  occasion  he  had  quieted  a  riotous  crowd  on  the  Santee,  and  thus  he  believed  he 
had  entire  control  over  the  people  there. 

Cross-examination : 
That  Joe  Bnsh  was  speakiug  to  the  crowd  in  front  of  S.  R.  Cavis's  store,  when  he  made 
those  remarks  about  carrying  Democratic  tickets  to  the  Santee  poll.  He  did  not  stop 
to  identify  any  person  in  this  crowd.  His  personal  interview  with  Joe  Bush  took 
place  some  three  or  four  weeks  prior.  No  other  person  was  present.  Deponent  testi- 
fies that  he  was  a  Republican  at  that  time  and  is  not  so  now. 

Redirect : 

After  what  he  had  heard  from  Jas.  Bush,  he,  the  deponent,  would  not  have  dared  to 
go  to  the  Santee  poll  to  vote  the  Democratic  ticket. 

He  heard  generally  talked  about  that  colored  men  who  voted  the  Democratic  ticket 
were  not  tit  to  live,  and  that  preachers  had  said  they  were  not  fit  to  be  members  of  the 
ehnrch.     If  he  had  voted  the  Democratic  ticket  he  would  have  been  afraid  to  let  it  be 


-244  DIGEST    OF    ELECTION    CASES. 

kuown.  Was  in  town  when  John  S.  Richardson  attempted  to  speak  to  a  crowd,  and 
•was  prevented  from  speaking  by  a  crowd,  of  which  Harvey  Jones  appeared  to  be  the 
leader.     Harvey  was  candidate  for  connty  commissioner  on  the  Repnblican  ticket. 

This  crowd  wouhl  not  allow  a  Democratic  colored  man  to  speak,  some  of  them  saying 
that  no  colored  Democrat  shonld  speak  to  them. 

Postmaster  E.  C.  Kaiuey  was  also  with  the  crowd  led  by  Harvey  Jones. 

He  the  deponent,  wanted  with  others  to  hear  Richardscm  speak,  bnt  the  crowd 
■would  not  allow  of  it  ;  and  so  the  speakers  were  prevented  from  speaking. 

Has  never  heard  one  say  that  he  was  afraid  to  join  the  Democratic  club.     He  is  » 
man  that  stays  in  the  town  and  never  goes  out  in  the  country. 
Cross-examination : 

This  disturbance  alluded  to,  when  John  S.  Richardson  was  prevented  from  speak- 
ing, was  more  than  a  w^eek  previous  to  election  day.  Saw  no  disturbance  like  this  on 
ihe  day  of  election.  Saw  nobody  prevented  from  voicing  at  the  election.  He  heard 
that  the  Democrats  had  said  that  no  one  who  was  true  to  the  Democratic  party  would 
vote  the  Republican  ticket. 

J.  A.  Jackson  colored  (Record,  p.  120) : 

It  was  supposed  that  the  disbanding  of  the  ritie-clubs  would  operate  in  such  a  man- 
ner as  to  secure  protection  from  colored  Democrats,  while  the  colored  Republicans 
■woald  be  afforded  every  protection  by  the  United  States  troops. 

In  the  course  of  the  canvass,  went  to  several  polls  of  the  county.  Was  prohibited 
from  going  to  Santee  and  Bowbicket,  and  threatened  with  his  life  if  he  went  there. 
His  lite  was  threatened  in  Waccamaw,  so  that  he  was  compelled  to  seek  protection  and 
use  stratagem  to  escape.  One  man  told  him  "  he  would  not  allow  any  d — d  Democrat 
to  come  in  that  part  of  the  county  ;  that  such  a  one  would  have  to  lose  his  blood  there 
if  he  ever  attempted  it."     Was  frequently  threatened  with  his  life. 

He  knows  there  was  considerable  ostracizing  of  those  who  were  Democrats;  and  the 
threats  of  violence  to  him  were  such  that  he  was  prohibited  from  traveling  and  making 
speeches  to  the  people.  He  thinks  that  if  the  troops  had  been  brqught  into  this  State 
for  peace  and  the  true  protection  of  the  voter,  that  it  was  essential  to  have  some  of 
them  in  Georgetown  to  enable  the  Democratic  colored  voters  to  vote  a«  they  pleased. 
He  knows  there  was  an  application  made  for  troops  to  protect  the  colored  people  who 
wanted  to  vote  the  Reform  ticket.     This  effort  was  unsuccessful. 

He  remembers  when  John  S.  Richardson  was  canvassing  the  connty  ;  was  present 
■when  he  attempted  to  address  the  people  at  a  mass-meeting.  He  was  frequently  inter- 
rupted by  a  noisy  mob,  who  acted  in  such  a  manner  as  would  demons  of  hell.  He  com- 
pared the  scene  to  the  wilds  of  Africa.  Fiendish  howls  and  abrupt  questions  to  the 
speaker  were  beyond  description.  This  behavior  compelled  Mr.  Richardson  to  give  up 
the  effort.  J.  Harvey  Jones  appeared  to  be  the  leader  of  this  riotous  mob.  On  this 
same  occasion  a  colored  gentleman,  named  Hutchins,  attempted  to  address  the  people 
in  behalf  of  the  Democrats,  but  was  not  allowed.  He  was  not  allowed  to  speak  at  all. 
He  was  led  to  believe  that  this  behavior  had  been  the  result  of  a  eoncocted  plan  on 
the  part  of  the  Republican  leaders  to  interrupt  free  speech. 

At  some  of  the  polls  he  would  not  have  dared  to  go  on  election-day.  His  life  was 
threatened.  Does  not  think  that  any  man  would  have  dared  to  carry  Democratic 
tickets  to  these  polls.  The  threats  were  so  great  and  violent  against  colored  Dem- 
ocrats as  to  make  them  fear  to  act  or  vote  freely. 

The  deponent  says  he  is  now  shunned  and  ostracized  by  the  Republicans  because  he 
voted  and  acted  according  to  the  dictates  of  his  own  conscience.  Hfe  believes  the 
noisy  disturbance  at  the  meeting  at  which  Mr.  Richardson  attempted  to  speak  was 
created  by  the  friends  of  Joseph  H.  Rainey.  He  believes  that  bodily  harm  might  have 
resulted  to  the  Democrat  speakers  on  this  occasion. 

He  knows  there  were  threats  held  out  by  the  church  by  a  preacher  against  Demo- 
cratic voters.  They  were  told  that  the  public  schools  would  be  closed  up ;  that  in 
other  parts  of  the  country  wives  had  split  the  heads  of  their  husbands  open,  and  they 
might  do  it  here.  Such  language  from  the  pulpit  had  an  influence  upon  the  minds  of 
the  people  greater,  after  the  dlsbaudment  of  the  rifle-clubs  and  the  arriving  of  United 
States  troops,  than  before. 

He  knows,  of  his  own  knowledge,  of  colored  men  who  had  told  him,  "  If  they  voted 
the  Democratic  ticket  they  would  not  dare  to  go  to  their  wives,"  and  two  men  told 
him  that  "  if  they  voted  it  they  knew  they  would  never  see  their  homes  alive."  He 
knows  some  eight  or  ten  men  who  said  that  they  would  not  join  the  Democratic  clubs, 
but  would  vote  the  Democratic  ticket,  if  they  could  do  so  without  its  being  known. 

B.  H.  Williams  was  candidate  on  the  straight  Republican  ticket  for  State  senator. 
He  was  a  presiding  elder  in  the  A.  M.  E.  Church,  presiding  over  the  district  including 
all  of  Georgetown,  Horry,  and  part  of  Williamsburg  Counties. 

That  previous  to  the  election,  at  several  public  meetings,  he  saw  the  Republicaus  as 
a  general  thing  armed  with  guns.  At  one  meeting,  on  Pee  Dee,  saw  nearly  every  Re- 
pnblican present  armed. 


RICHARDSON    VS.    RAINEY.  245 

F.  W.  McCiisker  (Eecord,  p.  122): 

The  next  appointment  was  at  the  conrt-hoiise  in  Georgetown.  Saw  a  colored  man 
Attempt  to  address  the  people  from  the  court-house  portico,  but  the  crowd  was  8o  bois- 
terous and  riotous  that  he  could  not  be  heard  at  all.  This  man's  name  was  Hiitchius, 
a,  colored  Democrat  who  was  speaking  in  favor  of  reform.  He  heard  from  the  crowd 
oalls  for  Richardson,  and  the  expressiim,  "  We  don't  want  to  hear  from  no  d — d  carpet- 
bagger." They  would  not  allow  Hutchins  to  speak.  Peter  Woodbury  addressed  them, 
and  asked  them  to  keep  order,  and  let  Mr.  Richardson  speak.  After  order  was  par- 
tially restored  Mr.  Richardson  began  to  speak;  spoke  about  15  minutes  without  inter- 
ruption, when  the  noise  and  confusion  began  anew.  Questions  were  put  to  him  so  faist, 
and  the  confusion  became  so  great,  that  he  was  prevented  from  speaking  further  before 
he  was  half  through.  It  seemed  to  be  the  set  purpose  of  this  party  to  deny  him  free 
speech.  There  was  quite  a  commotion  in  this  crowd,  which  finally  broke  up  in  a  row. 
Learned  afterwards  tliat  one  man  had  been  stabbed  and  another  knocked  down,  H© 
thought  that  at  this  time  the  town  was  threatened  with  a  serious  riot,  which  was  pre- 
vented only  by  the  forbearance  of  the  whites. 

It  had  been  arranged  in  the  programme  of  the  canvass  that  the  Democrats  should 
have  one  meeting  at  Santee ;  but  from  advice  given  by  some  of  the  citizens  residing 
on  Sautee  (General  Manigault  and  others),  did  not  go  there.  Thought  evil  would  arise 
from  it.  That  the  people  there  looked  upou  the  Democrats  as  their  worst  enemies,  and 
would  not  have  hesitat^'d  to  use  violence  at  the  instance  of  their  leaders.  Was  ia- 
formeii  that  Joseph  Bush  had  a  crowd  of  roughs  who  were  ready  to  do  his  bidding,, 
and  were  eager  and  ready  for  a  fray. 

(Objected  to  by  contest ee  as  hearsay.) 

On  this  account  did  not  have  the  meeting,  as  previously  arranged, 

The  next  appointment  was  at  Sampit.  On  the  same  day  the  Republicans  had  a 
meeting  in  Georgetown,  at  the  court-house.  On  the  way  to  Sampit  Bridge,  met  sqnada 
•f  colored  men  coming  to  town,  nearly  aU  of  whom  were  armed.  This  hatl  the  eflfect 
of  leatling  several  of  his  party  to  apprehend  danger  on  their  return,  and,  fearing  an 
ambush,  they  were  compelled  to  break  up  the  Sampit  meeting  and  return  to  town  be- 
fore night.  W.1.S  not  interrupted,  however,  on  the  return  to  town.  This  feeling  of 
apprehension  was  particularly  felt  by  the  colored  Democrats  in  the  party  with  depo- 
■ent  on  that  occasion.  They  feared  personal  violence  to  themselves  from  the  armed 
Republicans  who  had  been  seen  going  to  town  in  the  forenoon. 

At  the  Brook  Green  poll,  on  election-day,  deponent  saw  an  old  colored  man,  who 
had  voted  the  Democratic  ticket,  who,  after  voting,  was  severely  upbraided  in  harsh 
terms  by  some  of  the  Republicans.  This  language  was  such  as  to  have  the  effect  of 
intimidating  other  colored  men  who  might  have  desired  to  vote  the  Democratic  ticket. 

Cross-exiimination : 
Could  not  say  that  the  shooting  at  the  meeting  on  Waccamaw  was  at  any  person  or 
]^r80us.     Does  not  know  whether  the  guns  were  shotted  or  not. 

London  Green  (colored),  being  duly  sworn,  testified  (Record,  p.  125); 

That  he  lives  on  North  Santee.  On  the  day  of  election  walked  down  to  the  Santee 
poll.  Started  from  home  at  seven  o'clock  in  the  morning.  Wheu  he  got  near  the  poll, 
aet  Paul  AUston  with  tickets  for  distribution.  These  were  the  red  tickets,  Repnbli- 
«an.  He  asked  deponent  how  he  was  going  to  vote.  He  said  "The  Jones  ticket." 
Paul  said,  ''If  you  vote  Jones's  ticket  to-day,  I  will  «ee  yon  between  now  and  dark, 
because  Jones  is  a  Democrat,  and  no  man  shall  vote  Jones's  ticket  here  to-day."  He, 
deponent,  told  the  boys  with  him  to  come  on,  and  Paul  Allston  said,  "If  you  or  any 
man  attempt  to  vote  the  Jones  ticket  at  this  poll  to-day  I  will  have  you  all  arrest«d 
here  to-day.'"  He  said  he  had  authority  to  arrest  any  man  whovot«d  other  than  the 
red  Rei)ublican  ticket:  that  he  got  his  authority  from  Governor  Chamberlain.  He 
then  pulled  out  a  paper  from  his  pocket  purporting  to  be  his  written  authority.  De- 
ponent then  said  to  the  men  with  him,  "  Boys,  if  voting  the  Jones  ticket  here  to-dajr 
will  cause  a  row,  and  have  ns  all  arrested,  we  mast  vote  the  ticket  that  Paul  Allston 
has,  right  or  wrong." 

Deponent  says  there  were  about  sixty  or  seventy  men  who  were  at  first  of  his  own 
determination,  but  who  afterward><  changed  their  determination  on  account  of  the 
threats  made  by  Paul  Allston  of  arresting  anv  man  who  voted  the  Jones  ticket.  There 
was  a  great  gang  of  men  with  Paul  Allston  in  the  road,  and  they  would  not  allow  de- 
ponent and  his  party  to  pass  by. 

Saw  Joseph  Burt  at  this  poll.  He  appeared  to  bethechief  mover  of  the  crowd  that 
was  supporting  the  red  Republican  ticket.  .Saw  no  guns  at  the  poll  that  day.  Did 
i»ot  remain  at  the  poll  more  than  t%vo  hours  after  voting. 

Deponent  says  that  he  and  his  crowd  were  so  much  intimidated  by  the  threats  of 
Paul  AlIsTon,  backed  up  by  his  show  of  authority,  that  they  felt  compelled  to  vote 
the  red  Republican  ticket,  which  was  not  the  ticket  of  his  choice. 


246  DIGEST    OF    ELECTION   CASES. 

Deponent  testifies  tliat  Joseph  Burt  tried  to  persuade  him  not  to  obey  the  summonH 
issued  by  R.  L.  Eraser,  notary  public,  to  attend  an  examination  in  the  present  ca*»e 
of  Jno.  ii.  Richardson  vs.  J.  H.  Raiuey. 

Thinks  there  were  some  150  or  more  persons  who  were  influenced  by  tho  threats  of 
Paul  Allston  to  vote  against  their  choice,  in  the  same  manner  as  deponent  was.  He 
thinks  it  would  have  been  difficult  for  auy  person  to  vote  any  other  than  the  red  Re- 
publican ticket  at  that  poll  on  that  daj'. 

Henry  Smith  (colored),  being  duly  sworn,  testifies  (Eecord,  p.  127): 

Resides  on  Santee.  Took  an  active  part  in  the  canvass  before  the  last  election  m 
the  support  of  the  Reform  or  Democratic  party  ;  knows  Joseph  Bush  and  other  headers 
of  the  Republican  party  on  Santee.  These  leaders  said  that  any  colored  man  who  be- 
came a  Democrat  would  be  spotted ;  that,  in  other  words,  they  would  be  intimidated, 
oven  to  the  extent  of  personal  violence.  Does  not  think  it  was  safe  for  a  colored  man 
to  go  about  on  Santee  and  advocate  his  political  opinions.  The  people  seemed  fearful 
to  take  sides  with  deponent  for  fear  of  their  bodies. 

On  one  occasion  he  was  personally  attacked,  a  few  days  before  the  election,  by  about 
fifteen  or  eighteen  men.  As  he  came  on  the  road  these  men,  in  ambush,  rose  up  l>€»- 
fore  him  in  such  a  manner  that  he  feared  they  would  attack  him.  They  upbraideil 
him  with  supporting  the  Democratic  party;  they  laid  hold  on  his  horse,  and  on» 
struck  his  horse.  Their  manner  was  very  violent.  They  said  they  wanted  satisfac- 
tion that  day,  out  of  him  that  day.  They  said,  "  We  will  look  after  you  on  election- 
day,  and  be  careful  what  you  do."  They  said,  "You  and  others  are  going  to  put  tis 
back  in  slavery,  and  we  band  together  to  watch  you."  After  many  expostulations 
the  crowd  let  him  depart,  but  said,  "You  had  better  look  out.  If  we  meet  you  en 
the  7th  day  of  November  voting  for  one  of  those  rebels,  take  care.  You  are  not  to 
cast  any  vote  or  come  to  the  poll  on  election-day." 

Job  Mazyck  (colored),  being  duly  sworn,  testifies  that  he  was  a  United 
States  marshal  at  the  last  election;  was  the  head  deputy  marshal  of  his 
county  (Kecord,  p.  132) : 

Heard  some  of  the  people  say  they  would  lose  their  rights  if  the  Democrats  were 
elected.  Never  heard  anything  about  being  turned  out  of  church  if  they  vot«d  for  the 
Democrats.  Heard  threats  against  W.  H.  Jones  for  affiliating  with  the  Democrats. 
Heard  that  at  Santee  there  were  five  men  placed  on  the  road  to  shoot  W.  H.  Jones  Ije- 
cause  he  was  thought  to  be  a  Democrat.  Knows  one  little  fellow  who  was  made  druuk 
for  the  express  piirpo.se  of  shooting  Jones,  and  who  afterward  said,  "Damned  if  he 
wouldn't  shoot  him  if  he  had  come  along." 

The  feeling  on  Santee  was  such  that  it  was  not  safe  for  a  person  to  go  there  to  ad- 
vocate the  Democratic  ticket. 

Deponent  sent  Ned  Lawrence  down  to  Santee  as  a  deputy  marshal,  who  reported  to 
him  that  ihe  people  down  there  would  not  allow  any  one  to  distribute  Democratic 
tickets  down  there,  and  that  there  was  a  man  down  there  who  pretended  to  be  a 
United  States  marshal,  deputized  by  Governor  Chamberlain,  and  said  if  he  undertook 
to  distribute  Democratic  tickets  there  he  would  have  him  in  jail  before  night.  (Ob- 
jected to  by  contestee  as  heai"say,  as  to  what  was  told  the  deputy  marshal.) 

This  hostility  on  Santee  was  manifested  against  all  parties  who  voted  else  than  the 
straight  Republican  ticket.  Bnrt  told  deponent  in  town  that  it  would  be  unsafe  *• 
can-y  any  other  than  the  straight  Republican  ticket  down  to  Santee. 

Was  in  town  when  Mr.  Richardson  attempted  to  address  the  crowd, -and  was  pre- 
vented by  a  row.  Deponent  thought  the  disturbers  ought  to  have  been  captured  aud 
put  in  jail.  Gipson  and  Harvey  Jones  were  the  leaders  of  this  mob.  Gipson  said, 
"Let  IIS  make  a  fuss,  that  they  can't  speak."  The  noise  was  so  great  that  no  free 
speaking  could  be  had  or  heard.  Heard  the  row,  but  did  not  see  any  person  knocked 
down  or  cut;  was  away  from  the  court-house  about  a  square  at  the  time  of  the  great- 
est fuss.  Heard  Republican  leaders  speak  in  such  a  way  as  to  terrify  the  people  if 
they  voted  against  them.     Heard  Gipson,  in  a  speech,  say,  "  If  Ross  Johnson  would  go 

out  of  town  be  would  have  liira  whipped,  for  he  was  a  d d  Democrat,  and  was 

trying  to  get  the  colored  people  down  in  the  ditch  again."  This  language  was  very 
loud  and  indecent. 

Heard  no  other  threats  of  violence.  Was  in  town  when  General  Hampton  addressed 
the  people.  At  this  time  saw  Gipson  in  a  crowd  of  colored  men  threatening  all  who 
became  Dem'ocrats. 

Deponent,  on  the  day  of  the  procession,  saw  a  colored  man  who  wanted  to  raise  a 
mob  and  stiike  a  Mr.  Brittou,  and  deponent  was  forced  to  use  his  authority  as  United 
States  marshal  to  quiet  a  row. 

The  colored  people  who  were  in  the  procession  were  treated  with  abusive  laugiuigo 
by  crowds  of  women  and  boys  as  they  passed  by,  which  continued  during  the  time 
the  procession  was  moving. 


RICHARDSON    VS.    RAINEY.  247 

Heard  people  say  that  they  were  going  to  stop  the  proceseiou  on  that  djiy. 

Dejioneut  and  his  deputies*  were  kept  pretty  active  on  that  day  in  preserving  the 
peace.  He  had  every  apprehension  of  there  beintj  a  row.  There  was  a  drea<\  over 
the  mind  of  the  i>eople  generally  that  the  success  of  the  Democratic  party  would  lead 
to  their  disfranchisement. 

He  knowK  that  W.  H.  Jones  was  afraid  to  visit  Black  River,  Upper  Waccaniaw,  and 
Sant«e,  because  the  people  there  had  threatened  him  because  he  was  thought  to  be  a 
Democrat. 

Knows  of  a  great  many  threats  madt-  against  W.  H  Jones  throughout  the  county. 
Heard  some  in  town.  Saw  a  njan  who  had  a  pistol  and  was  dodging  around  deponent's 
shop  looking  for  Jone^.  The  beliavior  of  this  man  led  deponent  to  believe  that  he  was 
on  the  lookout  for  Jones,  with  the  intention  of  shooting  him  when  he  came  out  of  the 
gate.  Tliis  same  man  had  previously  made  threats  against  Jones.  After  this,  these 
same  political  enemies  of  Jones  had  m.ade  an  arrangement  or  conspiracy  to  shoot  into 
■deponent's  house,  where  Jones  was  staying,  but  the  conspiracy  was  disclosed  and  the 
attempt  was  not  made. 

Deyioiicnt  knows  that  if  the  people  had  been  allo-wed  to  vote  as  they  pleased  that 
the  Jones  ticket  and  the  Democratic  ticket  would  have  got  a  much  larger  number  of 
vftteethan  they  did.  Deponent,  himself,  selected  only  two  of  his  deputies;  thereat 
of  them  were  selected  bv  the  United  States  marshal  m  Charleston.  These  were  all 
Republicans  but  one.     The  election  in  town  went  off  peaceably. 

The  reason  of  the  hostility  against  W.  H.  Jones  was  the  belief  that  he  had  changed 
to  a  Democrat. 

Had  heard  that  a  preacher  named  Murrell  had  said  that  the  only  way  to  beat  Jones 
<)olitically  was  to  kill  him. 

(Record,  page  134):  , 

S.  E.  Barxwell  is  a  resident  of  Georgetown  County.  Lives  at  North  Santee  « 
Took  an  active  part  in  the  late  canvass.  Took  pains  to  get  at  thosituation,  or  the  bot- 
tom facts  of  the  political  sentiments  of  the  people  generally.  He  ascertained  that 
there  was  undoubtedly  an  ostracism  practiced  by  the  colored  people  against  those  of 
their  color  who  leaned  towai'd  the  Democratic  party.  This  spirit  was  calculated  to 
depri'ss  the  colored  people,  and  that  the  effect  on  the  people  was  intimidation  pare 
and  simple  ;  that  they  were  led  to  fear  blows  and  personal  violence  if  they  left  the 
Republican  party.  The  masses  of  the  people  on  Santee  were  under  the  control  of  a 
few  leaders,  who  evidently  had  great  influence  over  them. 

In  the  campaign,  an  appointment  was  made  by  the  Democratic  speakers  for  Santee, 
but  was  not  had  because  th<'  gentlemen  on  Santee  had  an  apprehension  that  it  would 
ead  to  a  violent  row,  from  which  their  homes  and  families  would  be  endangered. 
This  apprehension  arose  from  the  fact' of  the  hostility  of  the  colored  people  to  the  Dem- 
ocratic party ;  especially  against  colored  men  who  would  go  with  the  Democrats.  This 
hostility  was  clearly  manifest.  Deponent  himself  had  to  caution  colored  people  who 
were  Democrats  against  uttering  sentiments  which  could  be  uttered  in  a  free  country, 
but  which  if  spoken  out  in  that  neighborhood  would  subject  them  to  personal  violence, 
riiere  was  then  open  and  avowed  intimidation  on  the  part  of  colored  men  who  desired 
;o  go  with  the  Democrats. 

Tliis  intimidation  of  the  colored  people  was  so  evident  that  the  whit/e  people  of  this 
part  of  the  county  feared  that  it  would  extend  to  them  in  a  measure.  The  impression 
on  the  part  of  the  whites  was  that  efforts  would  be  made  to  repress  the  free  exercise 
of  the  elective  franchise. 

He  thinks  many  white  men  went  to  the  Santee  poll  on  election  day  solely  from  a 
■ttern  sense  of  duty ;  that  they  apprehended  danger  at  the  poll  to  themselves  and  ap- 
prehended a  general  row. 

Was  at  the  Santee  poll  between  10  and  11  in  the  morning  on  election-day.  Depo- 
nent stopped  a  group  of  boy.s  who  were  in  the  act  of  voting  when  deponent  got  to  the 
poll,  and  challenged  them.  In  consequence  of  this  act  there  was  quite  a  commotion, 
;>  gathering  around  of  the  colored  people,  who  told  deimnent  he  had  no  right  to  stop 
any  voters.  Sheriff  Lesesne  stepped  forward  and  explained  to  the  crowd  before  they 
would  be  qtiieted. 

Afterward  deponent  challengeil  another  group  of  boys,  when  a  colored  man  told 
him  he  had  no  right.     Deponent  replied,  when  this  man  was  called  away. 

It  was  not  safe  for  a  black  man  to  advocate  the  Democratic  ticket  at  that  poll.  De- 
ponent would  have  advised  a  colored  friend  of  his  not  to  run  such  a  risk;  that  it  was 
too  great  for  the  occasion  to  justify.  No  colored  man  did  advocate  the  Democratic 
ticket  at  this  poll. 

The  demonstration  of  violence  against  the  Democratic  ticket  w^as  so  great  that  the 
white  gentlemen  present  did  not  even  actaally  engage  in  advocating  the  Democratic 
■oanse. 

Cross-examination : 

By  ostracism  deponent  means  revilings — threats  generally — as  being  the  mode  of 


248  DIGEST  OF  ELECTION  CASES. 

ostracizing;  reviling  them  for  being  DemocratSj  and  thereby  being  enemies  to  their 
race  and  color.  Knows  a  man  named  Henry  Smith,  who  was  a  conspicuous  object  by 
ostracism  by  his  race.  Nothing  of  this  kind  was  used  by  the  opposite  party.  Kather 
indncement«  and  encouragements  were  afforded  those  who  would  join  the  Reform 
party. 

Friday  Bossard  (colored),  being  duly  sworn,  testifies  (Record,  p.  140) : 

Resides  in  Georgetown  County.  In  the  last  campaign  took  part  with  the  Reform 
movement.  Means  of  intimidation  were  used  against  all  colored  persons  who  wished, 
to  join  the  Reform  movement  by  the  Republican  parties.  Joseph  H.  Rainey,  at  the- 
Georgetown  poll,  was  seen  by  deponent  to  take  away  a  Democratic  ticket  from  a  col- 
ored voter,  saying  his  name  was  not  on  it,  and  was  only  prevented  by  the  active  iuter- 
ference  of  deponent  from  tearing  it  up. 

The  doctrine  was  taught  by  the  Republican  leaders  that  the  Democrats  would  put 
the  colored  people  back  into  slavtrj*. 

Does  not  know  of  any  threats  of  actual  violence. 

The  colored  voters  on  deponent's  plantation  were  afraid  to  vote  as  they  pleased,  on 
account  of  the  teachings  of  the  Radical  leaders.  Thinks  a  great  many  of  them  would 
have  voted  the  Democratic  ticket  had  thej'  not  been  afraid  to  do  so.  Deponent's  brother 
had  to  come  to  the  poll  by  daybreak  to  vote,  for  fear  he  woQld  be  found  out  and  in- 
jured, on  account  of  having  voted  the  Democratic  ticket. 

From  his  observation  on  his  own  plantation,  deponent  thinks  this  same  influence 
was  extended  throughout  the  entire  county,  and  that  it  prevented  many  colored  men 
from  voting  the  Democratic  ticket. 

Deponent  feels  that  he  himself  has  been  ostracized  by  the  colored  Republicans ;  that 
they  all  turn  the  cold  shoulder  to  him. 

They  treat  other  colored  men  who  voted  for  the  Democrats  in  the  same  way,  and 
worse — to  such  an  extent,  that  in  some  cases  deponent  has  had  to  protect  some  from 
unkind  treatment  on  the  part  of  the  Republicans. 

The  efforts  of  the  whites  to  induce  the  colored  people  to  join  them  were  of  the  kind- 
est character. 

Some  of  deponent's  laborers  have  left  him  on  account  of  his  being  a  Democrat,  and 
thus  he  has  been  short  of  employes  when  needed.  These  laborers  were  the  women 
named  Dora  Toomer,  Hester  Brown,  Lucretia  Mahew,  Annie  Brown,  Jane  Gaillard, 
Susannah  White,  B«tty  Smith,  Annie  Bookie,  Catharine  Bookie,  Rose  McGuine,  and  one 
man  named  Frank  Bookie,  and  another  man,  Isaac  Lewis.  They  left  in  January  last 
when  their  contract  expired.  These  women  are  all  married,  and  their  husbands  are  all 
working  with  deponent.  These  women  made  their  husbands  vote  the  Republican 
ticket.  They  said  if  their  husbands  voted  the  Democratic  ticket  they  would  see  what 
they,  the  women,  would  do ;  and  by  that  all  the  husbands  voted  the  Republican  ticket. 
Thinks  he  does  not  know  that  the  men  voted  in  consequence  of  what  the  wives  told 
them.  This  is  what  led  deponent  to  believe  that  the  men  were  afraid  to  vote  the 
Democratic  ticket. 

Tom  McGuine  was  the  name  of  the  colored  man  whom  J.  H.  Rainey  attempted  to- 
prevent  from  voting  the  Democratic  ticket. 

Joseph  H.  Rainey  was  one  of  the  leaders  who  said  that  those  who  voted  the  Demo- 
cratic ticket  should  be  treated  as  enemies.  Rainey  was  the  only  one  of  the  leaders 
whom  deponent  heard  say  this;  and  also  Gibson.  He  remembers  no  other.  He  heard 
Rainey  say  so  on  election-day,  at  the  court-house,  and  at  no  other  time.  At  the  same 
time  he  heard  Gibson  say  the  same  thing,  and  "  preach  a  sermon  off  of  it,"  The  other 
time  he  heard  Gibson  say  so  was  the  day  when  Hampton  was  in  Georgetown,  when  he 
Raid  so  in  Georgetown. 

Peter  Woodbury  (colored),  being  duly  sworn,  testified  (Record,  p.  143)  t 

Lived  in  Georgetown  County  before  and  at  the  last  election.  Wont  around  the 
county  canvassing.     Advocated  the  Democratic  ticket. 

There  was  more  intimidation  in  this  last  election  than  deponent  had  ever  seen  or 
heard  of  before.  All  of  the  leaders  of  the  Republican  party  that  could  utter  a  word  to 
the  people  told  them  not  to  vote  the  Democratic  ticket;  if  they  did  they  would  cer- 
tainly go  back  into  slavery.  Deponent  believes  there  were  a  great  many  men  wha 
would  nave  voted  the  Democratic  ticket  if  that  had  not  been  so  advised  by  their 
leaders.  Even  in  joint  discussions  the  Republicans  would  try  to  inflame  the  people. 
Gibson  would  endeavor  to  inflame  the  people  on  every  occasion.  Ou  the  day  when 
Hampton  was  in  town  Gibson  frequently  endeavored  to  create  a  row. 

The  effect  of  the  teaching  of  the  Republican  leatlers,  by  which  the  people  were  intimi- 
dated, was  to  prevent  the  colored  people  fron  voting  the  Democratic  ticket. 

It  was  the  general  impression  throughout  the  entire  country  that  the  colored  people 
■who  supported  the  Democratic  party  would  be  turned  out  of  the  church.  The  preaob- 
«r8  spoke  this  from  the  pulpit. 


RICHARDSON    VS.    RAINEY.  24^ 

Deponent  was  among  the  people  a  great  deal,  and  was  capable  of  ascertaining  their 
eentiments. 

The  impression  among  the  people  was  (when  the  rifle-clubs  were  disbanded)  that 
the  colored  man  who  voted  the  Democratic  ticket  wonld  not  be  protected,  while  those 
■who  voted  the  Republican  ticket  would  have  every  protection  ;  that  the  Republican* 
freed  them,  and  that  they  must  do  Avhat  the  Republicans  told  them  to  do,  and  that 
the  leaders  were  sent  here  to  see  that  they  voted  the  Republican  ticket.  Has  heard 
the  people  say  that  if  they  failed  to  vote  as  the  leaders  said  they  would  lose  the  pro- 
tection of  the  Republican  party. 

On  the  night  that  Mr.  Richardson  spoke  and  was  prevented  by  the  people,  led  on  by 
Harvey  Jones,  Gibson,  and  others,  deponent  endeavored  to  quell  the  riot,  but  in  vain. 

Heard  that  Gibson  had  told  the  people  that  the  Democrats  had  trie_d  to  drown  him 
when  they  had  brought  him  over  fron  Waccamaw  in  a  boat.  Deponent  knows  to  the 
contrary,  because  he  was  in  the  boat  himself.  Gibson  spread  this  report  about  among 
the  excited  crowd  that  night.  There  was  a  cousiderable  row"  that  night,  brought  on 
by  the  Radical  leaders.  Deponent  thinks  this  riot  had  a  considerable  effect  in  intimi- 
dating the  voters  who  might  have  desired  to  join  the  Democrats. 

Remembers  when  going  to  a  meeting  on  Sawpit,  he  saw  a  considerable  number  of 
colored  men  coming  to  town  armed.  There  was  a  general  apprehension  in  the  minds 
of  the  colored  people  who  were  with  deponent  that  a  row  was  imminent.  In  conse- 
quence of  this  the  meeting  on  Sawpit  was  broken  up  prematurely. 

Henry  Perry,  haviug  beeu  called  as  a  witness  for  the  contestant, 
after  beiiig  duly  sworn,  testified  as  follows,  to  wit  (Record,  p.  165) : 

Question.  Are  yon  a  resident  of  Darlington  County,  and  were  you  present  at  the  last 
general  election,  7th  of  November,  1877  T — Answer.  I  am,  and  was. 

Q.  Were  you  a  member  of  the  Democratic  club  at  this  place  ? — A.  I  was. 

Q.  State  what  occurred  to  yon  on  the  day  of  the  election. — A.  After  I  had  voted  on 
the  day  of  the  election  I  staid  away  from  home  for  several  days. 

Q.  Why  was  that  f — A.  I  did  not  want  to  have  any  fuss  with  my  wife  in  conseqaence 
of  voting  the  Democratic  ticket.  After  the  speaking  of  Whittemore  and  others  she  got 
after  me  abont  being  a  Democrat. 

Q.  Were  the  colored  Democrats  threatened,  abused,  or  interfered  with  by  the  Repub- 
licans ? — A.  I  was  not,  but  have  heard  others  abused.  Abraham  Brown  is  the  only  one 
I  know  of;  colored  Republicans  threatened  to  beat  him ;  Joe  Slaughter  was  abused  by 
same  parties. 

Cross-examiued : 

Q.  Who  abused  Joe  Slaughter  ? — A.  Joshua  Daniels  and  B.  O.  HoUoway. 
[    Q.  What  did  they  do  to  himf — A.  They  threw  him  out  of  the  public-school  house. 

Q.  Was  it  at  a  political  meeting  of  the  Republicans?  If  so,  what  did  he  do  ? — A.  It 
was.  He  did  not  speak  or  offer  to  speak.  They  told  him  to  go  out,  when  he  refused  ;, 
they  then  put  him  out. 

Q.*  Did  you  see  or  hear  any  one  abuse  Abraham  Brown  ? — A.  I  only  heard  of  it  from 
rthers.     He  told  me  of  it  before  the  election  himself. 

Q.  Who  do  you  work  for  f — A.  For  Calvin  Strother,  a  colored  Democrat. 

Q.  What  do  you  do  ? — A.  I  am  a  blacksmith. 

Q.  How  many  days  did  you  stay  from  home  ? — A.  Was  away  from  home  three  days- 
after  the  election. 

Q.  Where  did  you  stay  after  the  meeting  spoken  oft — A.  From  the  meeting  spoken 
of  up  to  the  election  I  staid  at  home. 

Q.  Did  your  wife  ever  beat  yon  ? — A.  No,  sir. 

Q.  Did  any  one  ever  beat  you  t — A.  No,  sir. 

Q.  Has  any  one  beat  yeu  or  interfered  with  you  on  account  of  yoar  vote? — A.  No, 
sir. 

Redirect  examination: 
Q.  Could  a  timid  colored  man  have  voted  at  this  jirecinct  at  the  last  election? — A.. 
He  could  not  without  difficulty,  in  my  opinion.     I  am  not  afraid  of  anybody. 

Yanty  Byrd,  having  been  called  as  a  witness  for  the  contestant,  after 
being  duly  sworn,  testified  as  follows  (Record,  p.  166) : 

Question.  Are  you  a  resident  of  Darlington  County,  and  were  you  present  at  the 
general  election  of  November  7,  1876? — Answer.  I  am,  and  was. 

Q.  Were  you  a  member  of  the  Democratic  party  ? — A.  I  am,  and  have  been  since  tha 
"war,  and  expect  to  remain  so. 

Q.  Have  you  ever  been  threatened,  abused,  or  disturbed  on  account  of  being  a  Dem- 
ocrat?— A.  I  have  been  cursed,  abused,  and  threatened  to  be  whipped  for  being  a. 
Democrat ;  they  double-t«amed  me  once,  and  have  attempted  to  whip  me  several  times^ 


250  DIGEST  OF  ELECTION  CASES. 

Q-.  Wae  violence  need  or  threatened  against  other  Democrats,  colored  f — A.  Oh,  yes, 
I  heard  Abraham  Brown's  son  threaten  to  whip  him  coming  from  the  Hampton  meet- 
ing at  Darlington  Court-House,  the  Saturday  before  the  election. 

Q.  Were  colored  men  prevented  from  voting  the  Doniocr.ntic  ticket  by  others  of  their 
■own  color? — A.  Many  colored  men  were  prevented  from  voting  the  Democratic  ticket 
by  their  own  color ;  many  have  told  me  so  since  the  election. 

Q.  Could  any  but  a  bold  man  of  your  color  vote  the  Democratic  ticket  ? — A.  No,  sir. 

Q.  Were  not  the  colored  people  told  by  B.  F.  Whittemore  and  others  to  lire  the 
"woods  on  the  day  of  election,  to  keep  the  Democrats  at  home  to  fight  fire  ? — A.  He  told 
them  if  the  women  could  not  control  their  husbands  they  must  set  dre  to  the  woods  t» 
leep  Democrats  at  home. 

Q.  What  sort  of  a  day  was  the  7th  of  November  f — A.  It  was  rainy  in  the  morning, 
;and  the  night  previous. 

Cross-examination : 
Q.  Did  yon  hear  Whittemore,  or  anybody  else,  make  the  statement  above  related  1 — 
A.  I  did  not.    My  wife  told  mo  she  heard  him  say  so.    I  did  not  goto  any  of  their  meet- 
ings. 

Calvin  Strother,  having  been  called  as  a  witness  for  the  contestant, 
after  being  sworn  testified  as  follows  (Record,  p.  116) : 

Question.  Are'you  a  resident  of  Darlington  County,  and  were  you  present  at  the  gen- 
eral election  of  7th  November,  1876? — Answer.  I  am,  and  was. 

Q.  Were  you  a  member  of  the  Democratic  club? — A.  I  was. 

Q.  Were  colored  Democrats  abused,  threatened,  and  disl  urbed  by  their  own  color,  on 
account  of  their  politics? — A.  They  were  as  a  general  thing.  A  great  many  colored 
mep  have  said  to  me  that  they  did  not  blame  white  men  for  being  Democrats,  but  as  to 
black  men  they  could  not  well  understand  it. 

Q.  Was  not  a  great  pressure  brought  to  bear  upon  colored  voters  by  men  of  their 
•own  color  ? — A.  Yes ;  I  believe  if  it  had  not  been  for  this  pressure  brought  to  bear  by 
colored  voters  upon  their  own  color,  many  of  them  would  have  voted  the  Democratic 
ticket.  I  don't  know,  but  I  think  there  was  also  pressure  on  the  part  of  Democrat* 
■against  Republicans.  But  for  the  influences  spoken  of,  I  think  there  would  have  been 
more  Democratic  than  Republican  votes. 

Cross-examination : 
Q.  Did  yon  hear  threats  made  by  Whittemore  and  othere  tp  burn  the  woods  to  keep 
Democratic  laud-owners  at  home  ? — A.  I  had  heard  of  firing  the  woods.  My  son,  » 
small  boy,  was  at  the  meeting  and  told  me  that  Mr.  Whittemore  did  not  say  that  they 
must  tire  the  woods,  but  that  he  (Whittemore)  had  heard  say  that  on  election -day, 
when  they  went  oft"  to  vote,  woods  were  set  on  fire,  and  employers  would  have  to  stay 
at  home  and  fight  fire. 

But  your  committee  could  not  cumber  this  report  with  further  extracts 
•from  the  testimony.  The  evidence  of  the  witnesses,  extracts  from  whose 
testimony  is  given  above,  is  corroborated  by  Ben  Allison,  p.  147 ;  W.  R. 
Beamer,  p.  151 ;  J.  Y.  Culpepper,  p.  157;  Beck,  p.  160  ;  Rollins,  p.  162  j 
Hunter,  p.  163;  Moore,  p.  164;  Perry,  p.  165;  Byrd,  p.  166;  Keith,  p.  166; 
Strother,  p.  167;  Brown,  p.  169;  Early,  p.  175;  Edwards,  p.  181,  and 
"very  many  others.  Among  them  are  Republicans,  Democrats,  white 
-and  colored.  Tbeir  evidence  leaves  no  doubt  in  the  minds  of  the  com- 
mittee that  the  colored  Republicans  of  the  first  South  Carolina  district 
by  armed  demonstrations,  through  their  religious  and  social  organiza- 
tions, by  threats  and  actual  abuse  intimidated  hundreds  of  their  own 
race,  forced  them  to  vote  against  their  will,  and  exercised  such  undue 
and  illegal  influence  as  to  deprive  tbe  election  in  that  Congressional  dis- 
trict in  November,  1876,  of  all  character  as  a  full,  free,  and  fair  election. 
But  the  saddest  page  of  the  history  of  the  election  in  South  Carolina 
remains  to  be  written.  It  is  that  which  chronicles  the  deliberate,  will- 
ful, illegal,  and  unconstitutional  efibrt  to  control  the  election  in  that 
State  by  the  use  of  the  militarj^  forces  of  the  United  States. 

The  history  of  reconstruction  in  the  South  shows  that  the  rotten-bor- 
ough governments  which  were  born  of  military  power  have  fallen  in 
jpieces  so  soon  as  the  military  i)ower  was  removed.  They  had  no  strength 
of  themselves;  they  could  not  exist  alone.     So  it  has  been,  that  when- 


RICHARDSON    VS.    RAINEY.  251 

ever  an  election  was  to  be  held  in  those  States,  the  bayonet  was  re- 
sorted to  as  the  most  convincinp^  argument  with  the  people.  From  most 
of  the  Southern  States  from  1868  to  1872,  and  in  others  of  them  even 
down  as  late  as  1876,  aud  even  now  in  one  of  them,  representatives,  not 
of  the  people,  but  of  the  bayonet,  have  sat  in  the  Congress  of  the  United 
States. 

Let  us  cherish  the  hope  that  this  humiliating  spectacle  will  be  seen 
no  more.  Let  us  believe  that  it  was  the  natural  result  of  a  great  war 
in  which  the  Government  must  needs  trust  all  to  the  military  arm,  and 
in  which  took  on  a  fierce  military  spirit,  which  clung  to  it  for  the  time 
its  civil  administration.  Let  us  hope  that  it  was  never  intended  to  be 
what  in  reality  it  was,  a  deliberate  violation  of  the  Constitution,  and  a 
ruthless  war  upon  American  institutions. 

By  the  middle  of  October,  1 876,  the  fortunes  of  the  Republican  leaders 
in  South  Carolina  had  grown  desperate.  The  colored  voters  were  de- 
serting them  by  thousands.  They  were  flocking  to  Democratic  meet- 
ings; they  were  riding  in  Democratic  processions;  they  were  joining 
Democratic  clubs.     On  this  point  there  can  be  no  doubt. 

The  conciliatory  policy  of  Goveinor  Hami)ton  and  his  co-workers  in 
the  cause  of  reform  and  good  government,  the  dreadful  condition  of  both 
races  brought  about  by  eight  years  of  misrule  and  plunder,  the  disgust 
of  many  of  the  most  respectable  colored  men  at  the  broken  promises  and 
open  corruption  of  the  Republican  leaders,  the  troubles  and  bad  feeling 
which  caused  a  feeling  of  general  distrust  and  insecurity — these  and 
other  similar  causes  were  revolutionizing  the  minds  of  vast  numbers  of 
the  colored  race,  and  they  were  joining  with  their  white  fellow-citizens 
to  stay  the  rule  of  the  public  plunderer,  and  to  save  what  little  was  left 
of  the  State's  imperiled  interests. 

Aud  at  this  time,  too,  perfect  peace  and  quiet  existed  in  the  State. 
There  were  no  riots,  no  tumults,  no  bloodshed.  There  was,  indeed,  the 
usual  excitement  incident  to  a  hotly  contested  political  campaign,  but 
it  was  all  peaceful. 

It  appears  by  ttie  record  that  nearly  every  judge  and  sheriff  in  the 
State  testify  to  this  fact — both  Republicans  and  Democrats.  Look  at 
the  evidence  (Record,  p.  36) : 

His  honor  Judge  A.  J.  Shaw  sworn. 

Question.  Where  do  vou  reside? — Answer.  In  the  town  of  Sumter,  S.  C. 

Q..  Do  you  hold  any  official  position  in  the  State,  and,  if  so,  what! — A.  I  am  judgo 
of  the  third  judicial  circuit,  composed  of  the  counties  of  Sumter,  Clarendon,  Will- 
iamsburg, aud  Georgetown. 

Q.  How  long  have  you  been  the  judge  of  this  circuit! — A.  Since  February,  1875. 

Q.  Where  were  yo\i  during  the  political  canvass  of  last  fall,  and  at  the  time  of  the 
election  on  the  7th  of  November? — A.  During  the  mouth  of  September  I  was  at  the 
North.  I  returaed  to  Sumter  the  first  week  in  October,  and  have  been  within  the 
limits  of  my  circuit  ever  siuce.  On  the  day  of  the  election  I  was  in  the  town  of 
Sumter. 

Q.  When  did  the  fall  and  winter  terms  of  your  courts  begin,  and  when  did  they 
elose? — A.  They  commenced  at  Sumter  the  second  week  iu  October,  and  ended  at 
Goorgetowu  about  the  second  week  in  November.  The  business  of  the  courts,  how- 
ever, did  not  occupy  all  of  this  time.  The  litigated  cases  in  the  common  pleas  were 
not  tried,  and  there  were  fewer  cases  in  the  general  sessions  than  ever  before  on  the 
circuit  within  ray  knowledge.  In  Sumter,  especially,  where  the  dockets  were  always 
heavy,  there  were  tmly  five  or  six  cases. 

Q.  Was  there  during  this  period  any  insurrection,  domestic  violence,  or  lawlessness 
in  your  circuit,  which  obstructed  or  hindered  the  execution  of  the  laws? — A.  None 
that  I  ever  knew  or  heard  of.  There  was  no  lawlessness  or  violence  of  any  kind  which 
the  ordinary  process  of  the  courts  could  not  remedy,  and,  not  withstanding  the  very 
^reat  political  excitement  which  prevailed,  the  laws  were  maintained  and  adminis- 
tered without  diflScultv. 


252  DIGEST    OF    ELECTION    CASES. 

The  State  of  South  Cakolina:    (Record,  p.  199.) 

Personally  appeared  before  me  C.  P.  Townsend,  who.  after  being  duly  sworn,  8ay» 
that  he  is  judge  of  the  fourth  judicial  circuit  of  the  State  of  South  Carolina,  and  ha» 
been  since  August,  1872;  that  during  the  last  political  campaign  in  South  Carolina, 
extending  from  July  to  November  7, 187fi,  there  was  no  obstruction  to  the  execution  »f 
the  process  of  the  courts  throughout  his  circuit,  so  far  as  his  knowledge  extended,  and 
the  law  was  administered  and  enforced  by  the  ordinary  method  provided  by  the  gene- 
ral assembly  in  accordance  with  the  State  constitution;  aud  that  there  was  no  law- 
lessness or  violence  at  any  time  during  the  campaign  which  could  not  have  been 
checked  and  remedied  by  the  process  of  the  courts. 

C.  P.  TOWNSEND. 

It  will  be  remembered  that  Governor  Chamberlain's  proclamation 
was  issued  October  7,  charging  violence,  lawlessness,  aud  insurrection. 
On  that  dav  the  following  correspondence  took  place  (Kecord,  pp^ 
556-O60): 

SUMTKR,  October  7.  18T»i. 

Dear  Sir  :  In  view  of  the  grave  charges  made  by  Governor  Chamberlain  against 
the  Democratic  party  and  their  mode  of  conducting  the  present  cauvass  in  this  State 
to  Colonel  Haskell,  charges  declaring  that  the  State  is  an  armed  camp,  and  that  our 
meetings  are  attended  by  organized  armed  bodies,  may  I  ask  you  as  a  Republican  aud 
as  the  chief  justice  of  the  State  to  say  if,  in  your  observation,  these  charges  are  borne 
out  by  the  facts  in  the  case  T  Yon  saw  to-day  one  of  the  largest  meetings  we  have  held, 
aud  you  can  therefore  speak  from  experience  and  personal  observation.  I  have  beeu 
through  seventeen  of  the  counties  of  the  State,  and  I  have  addressed,  I  am  sure,  at 
least  one  hundred  thousand  people,  and  I  can  say  with  perfect  truth  that  I  have  not 
Been  one  single  armed  body  of  men  nor  has  one  disturbance  occurred  at  any  of  these 
vast  meetings.  My  solicitude  for  the  good  name  of  our  State  will,  I  trust,  be  a  suffi- 
cient excuse  for  my  calling  your  attention  to  this  matter. 

Requesting  an  early  answer,  I  am,  verv  respectfully,  vonr  obedient  servant. 

WADE  HAMPTON. 

To  bis  Honor  F.  J.  Moses, 

Chief  Jvsiice. 

THE   REPLY. 

Si;mter,  S.  C,  October  7,  1876. 

My  Dear  Sir:  I  am  just  in  receipt  of  your  note,  and  at  once  r§ply  to  the  same.  For 
the  last  three  or  four  months  I  have  not  been  in  any  of  the  counties  but  those  of  Sum- 
ter and  Richland.  Within  that  period  I  have  been  present  at  only  two  political  meet- 
ings, one  held  by  the  Republican  party  and  the  other,  to-day  at  this  place,  by  the  Dem- 
ocrats. Although  I  was  at  the  latter  but  a  short  time,  I  was  for  the  greater  part  of 
the  day  in  the  streets,  with  every  opportunity  of  observing  the  behavior  and  demeanor 
of  the  large  concourse  which  the  occasion  had  brought  together.  The  collection  cou- 
Bisted  of  citizens  on  foot  and  horseback;  I  saw  in  no  instance  any  exhibition  of  arm» 
or  any  behavior  inconsistent  with  the  strictest  propriety.  At  the  Republican  meeting 
to  which  I  have  above  referred  there  was  no  attempt  at  interruption.  I  shall  require 
very  strong  evidence  to  satisfy  me  that  South  Carolina  is  an  armed  camp.  I  know  of 
nothing  which  would  lead  me  so  to  conclude.  For  myself  1  do  not  know  of  anything 
which  would  make  rae  doubtful  in  any  part  of  the  State  of  enjoying  the  same  security 
which  I  feel  attaches  to  me  under  my  own  roof.  I  trust  the  day  is  far  distant  when 
violations  of  the  peace  in  our  own  borders  will  require  the  interference  of  any  arm. 
more  potent  than  that  of  the  law. 
Very  respectfully,  yours, 

V.  J.  MOSES. 

To  General  Wade  Hampton. 

2d.  The  replies  of  judges  A.  J.  Willard.  T.  J.  Maokey.  Thompson  H.  Cooke,  A.  J.  Shaw, 
L.  C.  Northrop,  and  R.  B.  Carpenter; 

VIEWS  OF  justice  WILLARD. 

In  reply  to  letters  from  Col.  A.  C.  Haskell,  chairman  of  the  Democratic  executive 
committee,  Associate  Justice  Willard  (Republican),  of  the  supreme  court,  writes: 

Columbia,  S.  C,  October  7,  1876. 
To  Col.  A.  C.  Haskell: 
Dear  Sir:  Your  note  of  this  date  is  before  me,  asking  an  expression  of  my  view» 


RICHARDSON    VS.    RAINEY.  253 

»s  to  the  existence  of  rancor  and  manifestations  of  violence  in  the  character  of  the 
Democratic  canvass  of  this  State.  I  am  unable  to  throw  mnch  light  on  this  subject 
for  two  reasons.  In  the  first  place,  I  have  been  absent  from  the  State  for  the  last  three 
mouths,  and  only  a  week  has  passed  since  ray  return  to  this  city.  In  the  second  place, 
my  ideas  of  the  character  and  responsibilities  of  the  judicial  office  have  led  m^  at  all 
times  to  abstain  from  participating  in  political  action,  and  accordingly  I  have  little 
information  except  that  derived  from  public  rumor  and  the  newspapers  of  what  has 
transpired  at  political  gatherings.  I  can  ouly  say  that  I  have  witnessed  nothing  be- 
yond the  circumstances  generally  characteristic  of  an  excited  political  canvass.  I  have 
aeen  no  violence ;  on  the  contrary,  as  far  as  I  have  had  intercourse  with  gentlemen  of 
your  party,  I  have  observed  less  disposition  to  excited  statement  and  personal  bitter- 
ness than  during  any  of  the  previous  political  campaigns  in  this  State.  I  sincerely 
hope  that  the  fears  of  many  that  the  lawless  portion  of  the  community  will  be  per 
mitted  to  disturb  the  peace  and  injure  the  good  name  of  the  Stat©  are  groundless.  I 
am  satisfied  that  it  is  the  intenfiou  of  the  leading  members  of  your  party  to  prevent 
*nch  a  state  of  things,  and  I  believe  they  have  the  ability  to  do  so. 
Verv  respectfully,  your  obedient  servant, 

A.  J.  WILLARD. 

JUDGE  MACKJCY'S  PROTEST. 

Circuit  Judge  T.  J.  Ma<;key  (Republican)  telegraphs  as  follows: 

Chester,  S.  C,  October!. 
To  A.  C.  Haskell, 

Chairman  State  Democratic  Committee,  Columbia,  S.  C. : 

In  reply  to  your  inquiry  of  this  date,  I  would  state  that  peace  and  order  prevail 
throughout  the  limits  of  the  sixth  judicial  circuit,  embracing  the  four  counties  of  York, 
■Chester,  Fairfield,  and  Lancaster.  In  this  circuit  no  armed  organizations  obstruct 
judicial  proceedings,  and  no  resistance  has  been  oflered  to  the  due  execution  of  legal 
process.  In  charging  the  grand  jury  of  York,  on  last  Monday,  I  stated  that  if  any 
citizen,  whatever  might  be  his  race,  color,  or  party,  had  been  threatened  with  loss  of 
employment,  or  put  in  terror  because  of  his  political  opinions,  he  should  make  com- 
plaint before  the  grand  jury  or  in  open  court,  and  the  laws  should  be  put  in  motion  to 
sustain  him  in  the  free  and  untrammeled  exercise  of  all  his  rights  of  citizenship.  The 
grand  jury,  consisting  of  nine  white  and  six  colored  citizeus,  reported  unanimously  on 
last  Wednesday  night  that  no  organizations,  either  armed  or  otherwise,  having  for 
their  object  the  exhibition  of  force  to  control  the  free  exercise  of  the  elective  franchise, 
existed  in  that  county,  and  no  complaint  charging  the  existence  of  such  organization 
bad  been  made  to  them.  The  same  is  true  of  each  and  every  county  in  this  circuit. 
The  only  case  of  political  intimidation  that  has  transpired  in  this  circuit  was  tried  at 
York  on  last  Thursday,  the  defendant  being  one  Edward  McDonald,  colored,  charged 
with  threatening  the  life  of  one  Henry  Lowry,  also  colored,  because  he  had  joined  a 
Democratic  club,  and  had  declared  his  purpose  to  vot«  the  Democratic  ticket.  The 
jury  consisted  of  six  Republican  colored  citizens  and  six  white  men,  one  of  whom  is 
also  an  avowed  Republican.  The  prisoner  was  ably  defended  by  W.  B.  Williams,  esq., 
himself  a  candidate  on  the  Democratic  ticket.  The  jury  were  charged  by  me  thatthey 
were  the  sole  judge  of  the  evidence,  and  that  the  guilt  of  the  prisoner  must  be  estab- 
lished beyond  a  reasonable  doubt  to  warrant  a  conviction.  They  rendered  a  verdict 
of  guilty,  and  I  sentenced  the  prisoner  to  three  months  in  jail ;  the  lowest  penalty  pre- 
scribed by  law  for  the  otfense.  I  have  traversed  many  counties  in  the  State  canvass- 
ing for  Hayes  and  Wheeler  and  in  favor  of  Chamberlain  for  governor  during  the  past* 
sixty  days,  and  I  have  nowhere  seen  anattemptonthepart  of  any  portion  of  the  popn^ 
la  t  ion  to  suppress  the  right  of  free  speech  by  armed  violence. 

I  solemnly  protest  against  the  proclamation  of  Governor  Chamberlain  as  absolutely 
false,  in  so  far  as  it  imputes  to  the  inhabitant's  within  the  limits  of  this  circuit  any 
purpose  to  obstruct  the  ordinary  course  of  judicial  proceedings  or  to  resist  in  any 
manner  the  due  execution  of  the  laws  for  the  protection  of  life,  property,  or  the  rights 
of  citizenship ;  and  I  have  good  and  sufficient  reason  to  believe,  and  do  believe,  that 
the  said  proclamation  is  equally  false  in  imputing  such  insurrectionary  purpose  to  the 
white  population  in  the  other  circuits  of  this  State.  I  regard  the  proclamation  as 
symbolizing  fitly  a  formidable  conspiracy  against  the  rights  of  the  people,  having  for 
its  object  the  carrying  of  this  State  for  D.  H.  Chamberlain  and  his  candidates,  which 
conspiracy  is  further  typified  by  a  board  of  State  canvassers  or  election  returning-board 
the  majority  of  whose  members  are  candidates  on  Chamberlain's  ticket,  and  by  ninety- 
six  commissioners  of  election  in  the  several  counties,  seventy  of  whom  are  Chamber- 
lain's declared  partisans,  and  of  which  last  number  some  forty  are  county  treasurers 
«nd  atiditors  or  trial-justices,  holding  lucrative  offices  by  his  appointment  and  remov- 
able from  office  at  his  pleasure,  or  are  known  to  him  as  declared  candidates  for  office, 
indorsing  his  ticket,  who  unseat  themselves  if  they  make  a  declaration  of  the  election 
which  seats  the  candidates  opposed  to  Chamberlain  and  ticket. 


254  DIGEST  OF  ELECTION  CASES. 

The  rifle-clubs  that  he  has  ordered  disbanded  are  in  the  main  organizations  char- 
tered under  the  act  of  the  Republican  legislature  in  1874,  and  all  of  them  are  acting 
"but  in  the  assertion  of  the  right  of  the  people  to  keep  and  bear  arms,  guaranteed 
against  infriugfment  in  the  second  article  of  the  araendmonts  to  the  Constitution  of 
the  United  States,  and  all  assert  their  loyalty  to  the  Union  and  obedience  to  its  laws> 
and  respect  and  uphold  its  flag. 

T.  J.  MACKEY,  Judge. 

THE  OPINION   OF  JUDGE   COOKE. 

Judge  T.  H.  Cooke  (Republican)  writes: 

Columbia,  October  7. 

To  Col.  A.  C.  Haskku., 

Chairman  of  the  Executive  Committee  of  the  Democratic  Party  : 
Dear  Sir:  I  hare  just  read  the  proclamation  of  Governor  Chamberlain  as  to  a 
reign  of  terror  in  this  State,  and  his  inability  to  enforce  the  laws  through  the  ordinary 
channel,  and  I  must  say  that  the  causes  alleged  for  issuing  the  same  do  not  apply  to 
the  eighth  circuit,  over  which  I  preside,  nor  do  I  believe  they  have  any  existence  as  to 
any  other  portion  of  the  State, 
I  am,  very  respectfully, 

THOMPSON  H.  COOKE, 
Judge  of  the  Eighth  Circuit,  State  of  South  Carolina. 

THE  LAW   SUPREME  IN  JUDGE  SHAW'S  CIRCUIT. 

In  response  to  an  inquiry  of  Colonel  Haskell,  Judge  Shaw,  of  the  third  circuit,  tele- 
graphs as  follows: 

Sumter,  October  9,  187(j. 
To  Col.  A.  C.  Haskell: 

I  know  of  no  lawlessness  or  violence  which  the  law  cannot  remedy  in  this  circuit. 
The  law  is  maintained  and  adminjptered  without  difficulty. 

A.  J.  SHAW, 
Judge  Third  Circuit. 
NO  RESISTANCE  TO  LAW  IN   THE   SEVENTH  DISTRICT. 

The  following  telegram  was  received  this  afternoon  in  response  to  one  from  the 
chairman  of  the  Democratic  executive  committee : 

Newberry,  October  9,  1876. 
In  reply  to  your  inquiry,  I  have  to  say  that  I  am  in  nowise  prepared  to  express 
an^  just  opinion  upon  the  peace  of  the  State,  except  so  far  as  concerns  the  circuit  over 
which  I  have  the  honor  to  preside.  Since  my  appointment  to  the  bench  I  have 
been  engrossed  by  my  judicial  duties,  which  have  been  and  are  onerous.  They  have 
left  me  without  time  or  inclination  to  become  advise  of  particular  matters  outside  of 
my  circuit.  I  am  not  aware  of  any  resistance  to  the  pro  ess  of  the  court  iu  this 
county,  where  I  have  been  holding  court  for  a  week.  Unusual  quiet  prevails.  There 
Heemsto  be  a  public  apprehension  that  the  times  are  out  of  joint,  and  general  anxiety 
that  public  order  should  be  preserved.  Speaking  for  this  circuit,  I  can  pnly  say  that 
while  the  public  mind  is  of  course  inflamed  by  the  ardor  of  the  campaign,  I  have  not 
yet  been  confronted  by  any  organized  or  individual  resistance  to  the  authority  of  the 
courts.    The  good  sense  of  the  people  will  continue  to  preserve  the  public  peace. 

L.  C.  NORTHROP, 

Judge  Seventh  Circuit. 

Col.  A.  C.  Haskell, 

Chairman  State  Democratic  Executive  Committee  : 
Dear  Sir  :  I  have  the  honor  to  acknowledge  the  receipt  of  your  letter  of  this  date, 
propounding  certain  questions  in  reference  to  the  condition  of  the  judicial  circuits  of 
the  State  and  certain  military  organizations.  After  a  month's  absence  from  home  I 
returned  about  a  .week  ago,  and  since  that  time  I  have  been  exclusively  occupied  with 
official  affairs,  holding  the  regular  term  of  the  circuit  courts  for  this  county.  As 
to  the  alleged  lawlessness  and  violence-in  other  portions  of  the  State,  I  know  nothing. 
I  have  seen  statements  in  the  newspapers  giving  different  and  entirely  contradictory 
accounts  of  the  transactions  referred  to  iu  the  proclamation  of  Governor  Chamberlain', 
bnt  have  not  examined  the  testimony  or  been  in  either  of  the  localities.  Since  my  re- 
turn home  I  have  been  treated  by  my  acquaintances  of  both  political  jiarties  with  the 
usual  kindness  and  respect,  and  I  have  seen  no  exhibition  of  violence  and  lawlessness. 
No  resistance  to  judicial  process  or  authority  has  been  attempted  in  this  circuit,  to  my 


RICHARDSON    VS.    RAINEY.  255 

knowledge,  sicoe  I  have  had  the  honor  to  be  its  presiding  judge.  I  am  not  acquainted 
with  any  other  than  the  Richland  rifle  and  the  Richland  volunteer  rifle-clubs.  I  do 
not  know  of  my  own  knowledge,  nor  has  any  complaint  been  made  to  me.  of  any  acts 
ef  violence,  open  or  secret,  having  been  committed  by  these  companies.  My  acquaint- 
ance with  the  members  of  those  organizations  is  quite  general,  and,  from  my  knowl- 
edge of  the  personal  character  of  the  gentlemen  composing  them,  I  should  think  no 
danger  to  the  peace  and  good  order  of  society  could  be  rationally  apprehended  from 
that  source.  Withdrawn  from  partisan  politics,  as  a  citizen  I  feel  a  deep  interest  in  the 
welfare  of  the  State,  and  I  hope  those  of  both  parties  having  charge  of  the  canvass 
will  exercise  such  prudence,  justice,  and  fairness  a^will  insure  a  free,  fair,  and  full 
expression  of  the  popular  will. 

I  have  the  honor  to  be,  respectfully,  your  obedient  servant, 

R.  B.  CARPENTER. 

See  also  testimony  of  Governor  Hampton,  report,  p.  249,  Tiudall,  p. 
468,  and  numerous  others.  Here,  then,  is  the  solemn  and  deliberate  tes- 
timony of  the  supreme  and  circuit  judges  of  the  State,  of  sheriffs,  and  of 
many  other  citizens,  both  white  and  colored,  showing  conclusively  that 
Governor  Chamberlain's  proclamation,  upon  which  the  action  of  the  Fed- 
eral authorities  in  sending  troops  into  the  State  was  based,  was  willfully, 
deliberately,  and  wickedly  false — a  libel  and  a  slander  upon  the  people 
ikhose  interests  he  was  sworn  to  guard. 

Notwithstanding  this  profound  peace,  it  was  determined  by  the  Repub- 
lican leaders  to  overawe  the  State  with  the  presence  of  troops.  They 
could  be  used  to  discourage  the  Democrats,  to  encourage  the  Republi- 
cans, and  to  deter  colored  men  from  voting  with  the  Democrats.  With 
the  colored  race  of  the  South  no  argument  is  so  powerful  as  the  argu- 
ment presented  in  the  uniform  and  bayonets  of  Federal  troops.  Thej"^ 
believe  thatt  to  the  Union  troops  they  owe  their  freedom.  They  have 
been  carefully  tutored  that  they  cannot  oppose  the  will  of  the  Govern- 
ment. They  are  not  versed  in  the  law  and  Constitution  suflficiently  to 
know  that  in  popular  elections  the  Government  has  no  right,  no  will,  and 
no  voice.  Ignorant  and  credulous,  they  were  ready  to  believe  that  the 
corning  of  the  troops  was  for  the  purpose  of  compelling  them  to  vote  the 
Republican  ticket,  and  to  arrest  and  punish  them  if  they  failed  to  do  so. 

All  this  their  cunning  and  unscrupulous  leaders  well  knew.     Hence 

they  determined,  as  the  last  resort,  to  cause  troops  to  be  sent  into  the 

State.    On  the  7th  day  of  October,  Governor  Chamberlain,  himself  a 

candidate  for  re-election,  issued  the  following  proclamation.     (Report, 

•p.  11) : 

pr0c1.amat10n. 

State  of  South  Carolina, '^'R^^SJ 
Executive  Chamber,   i 

Whereas  it  has  been  made  known  to  mo,  by  written  and  sworn  evidence,  that  there 
exist  such  unlawful  obstructions,  combinations,  and  assemblages  of  persons  in  the 
eonnties  of  Aiken  and  Barnwell,  that  it  has  become  impracticable,  in  my  judgment,  as 
governor  of  the  State,  to  enforce  by  the  ordinary  course  of  judicial  proceeding  the  laws 
•f  the  State  within  said  counties;  by  reason  whereof  it  has  become  necessary,  in  my 
judgment,  as  governor,  to  call  forth  and  employ  the  military  force  of  the  State  to  en- 
force the  faithful  execution  of  the  laws ; 

And  whereas  it  has  been  made  known  to  me  as  governor  that  certain  organizations 
»nd  combin-itions  of  men  exist  in  all  the  counties  of  the  State,  commonly  known  as 
"ride-clubs"; 

And  wheieas  such  organizations  and  combinations  of  men  are  illegal  and  strictly 
forbidden  by  the  laws  of  this  State ; 

And  whereas  such  organziatiens  and  combinations  of  men  are  engaged  in  promoting- 
illegal  objects,  and  in  committing  open  acts  of  lawlessness  and  violence : 

Now,  therefore,  I,  Daniel  H.  Chamberlain,  governor  of  said  State,  do  issue  this  my 
proclamation  as  required  by  the  thirteenth  section  of  chapter  132  of  the  general  stat- 
Htes  of  the  State,  commanding  the  said  unlawful  combinations  and  assemblages  of 
persons  in  the  counties  of  Aiken  and  Barnwell  to  disperse  and  retire  peaceably  to  their 
homes  witbin  three  days  from  the  date  of  this  proclamation,  and  henceforth  to  abstain 


256  DIGEST    OF    ELECTION   CASES. 

from  all  unlawful  interference  with  the  rights  of  citizens,  and  from  all  violations  of 
the  public  peace. 

And  I  do  further,  by  this  proclamation,  forbidtheexisteuce  of  all  said  organizations 
or  combiuiitious  of  men  commonly  known  as  "  riiie-clnbn,"  and  all  other  orijanizations 
or  combinations  of  men  or  formations  not  forming  a  part  of  the  organized  militia  of 
the  State,  which  are  armed  with  tire-arras  or  other  weapons  of  war,  or  which  engage 
or  are  formed  for  the  purpose  of  engaging  in  drilling,  exercising  the  manual  of  arms 
or  military  maneuvers,  or  which  appear  or  are  formed  for  the  jjurpose  of  appearing 
under  arms  or  under  the  command  of  officers  bearing  the  titles  or  assuming  the  func- 
tions of  ordinary  military  officers,  or  in  any  other  manner  acting  or  proposing  to  act 
-as  organized  and  armed  bodies  of  men;  and  I  do  command  all  such  organizations,  com- 
binations, formations,  or  bodies  of  men  forthwith  to  disband  and  cease  to  exist  in  any 
place  or  under  any  circnmstances  in  the  State. 

And  I  do  further  declare  and  make  known  by  this  proclamation  to  all  the  people  of 
the  State  that,  in  case  this  proclamation  shall  be  disregarded  for  the  space  of  three 
days  from  the  date  thereof,  I  shall  proceed  to  put  into  active  use  all  the  powers  with 
which  as  governor  I  am  invested  by  the  constitution  and  laws  of  the  State  for  the  en- 
forcement of  the  laws  and  the  protection  of  the  rights  of  the  citizens,  and  particularly 
the  powers  conferred  on  me  by  chapter  cxxxii  of  the  general  statutes  of  the  State,  as 
well  as  by  the  Constitution  of  the  United  States. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of  the 
State  to  be  affixed,  at  Columbia,  this  7th  day  of  October,  A.  D.  1876,  and  in  the  lOlst 
year  of  American  Independence. 

[L.  s.]  D.  H.  CHAMBERLAIN. 

By  the  governor. 
H.  E.  Hayne, 

Secretary  of  State. 

The  utter  falsehood  of  this  proclamation  has  already  been  shown.  It 
was  indeed  but  the  reckless  assertion  of  a  reckless  leader  of  desperate 
men,  who  was  determine  to  try  that  "elixir  of  life"  to  the  carpet-bag 
government — the  presence  of  United  States  troops — as  the  last  remedy 
to  peri>etuate  its  wretched  existence  in  that  unfortunate  State. 

It  was,  to  the  people  of  South  Carolina,  the  formal  announcement 
that  their  State  was  again  to  be  carried  and  their  officers  and  legislators 
elected  and  Presidential  electors  chosen  by  means  of  military  interfer- 
ence and  intimidation. 

The  call  was  most  promptly  responded  to.  Your  committ^  would 
fain  hope  that  in  issuing  the  jiroclamation  given  below,  the  President  of 
the  United  States  was  but  honestly  acting  as  he  thought  best  for  the  pub- 
lic weal.  But  the  date  of  the  proclamation,  the  hasty  and  over-zealous 
action  of  the  then  Secretary  of  War,  the  hurried  movement  of  the  troops, 
the  anticipation  that  the  proclamation  would  be  unheeded,  the  presump- . 
tion  against  all  legal  teaching,  that  a  crime  would  be  committed,  leave  no 
doubt  in  the  mind  of  your  committee  that  the  authorities  of  the  Federal 
administration  lent  themselves  and  all  the  appliances  and  agencies  of 
the  Government  to  the  conspiracy  to  carry  the  election  in  South  Car- 
olina by  the  bayonet. 

On  the  16th  day  of  October,  1876,  General  Ruger,  commanding  at 
Charleston,  telegraphed  President  Grant  that  all  was  quiet  in  the  State, 
and  added,  "If  I  need  more  troops  I  will  send  you  a  dispatch  telling  you 
I  need  them."  Yet,  on  the  very  next  day.  President  Grant  issued  the 
following  proclamation  : 

Whereas  it  has  been  satisfactorily  shown  to  me  that  insurrection  and  domestic  vio- 
lence exist  in  several  counties  of  the  State  of  South  Carolina,  and  that  certain  combina- 
tions of  men  against  law  exist  in  many  counties  of  said  State,  known  as  rifle-clubs, 
who  ride  up  and  down  by  day  and  night,  in  arms,  murdering  some  peaceable  citizens 
and  intimidating  others;  which  combination,  though  forbidden  by  the  laws  of  the 
State,  cannot  be  controlled  or  suppressed  by  the  ordinary  course  of  justice;  and 
whereas  it  is  provided  in  the  Constitution  of  the  United  States  that  the  United  States 
shall  protect  every  State  in  this  Union,  on  the  application  of  the  legislature,  or  of  the 
executive  when  the  legislature  cannot  be  convened,  against  domestic  violence ;  and 
whereas,  by  laws  in  pursuance  of  the  above,  it  is  provided  in  the  laws  of  the  United 


RICUARDSON    VS.    RAINEY.  257 

States  that  in  all  cases  of  insurrection  in  any  State  or  nb.-trnction  to  the  laws  thereof, 
it  shall  be  lawful  for  the  President  of  the  Unitetl  States,  on  application  of  the  lejjisla- 
tnre  of  such  State,  or  of  the  executive  when  the  legislature  cannot  he  convened,  to 
call  for  the  militia  of  any  other  State  or  States,  or  to  employ  such  part  of  the  land  or 
naval  forces  as  shall  be  judged  necessary  for  the  purpose  of  suppressing  such  insurrec- 
tion or  causing  ihe  laws  to  he  duly  executed ;  and  whereas  the  legislature  of  said 
State  is  not  now  in  session,  and  cannot  be  convened  in  time  to  meet  the  jiresent 
emergency,  and  the  executive  of  said  State,  under  section  4  of  article  4  of  the  Consti- 
tution, and  of  the  laws  passed  in  pursuance  thereof,  has  therefore  m;ide  an  application 
to  me  in  the  jtrcmises  for  such  part  of  the  military  forces  of  the  United  States  as  may 
be  necessary  and  adecjuate  to  protect  said  State  aiul  the  citizt-ns  thereof  against 
domestic  violence,  and  to  enforce  the  due  execution  «>f  the  laws;  and  wlnreas  it  is 
required  that  whenever  it  may  be  necessary,  in  the  judgment  of  the  President,  to  use 
the  military  force  tor  the  purpose  aforesaid,  he  shall  forthwith  by  proclamation  com- 
mand such  insurgents  to  disperse  and  retire  peaceably  to  iheir  respective  homes  withiu 
a  limited  time: 

Now,  theref»)re,  I,  Ulysses  S.  Grant,  President  of  the  United  States,  do  hereby  make 
proclamatioiv,  and  conunand  all  persons  engaged  in  such  unlawful  and  insurrectionary 
pn)ceedings  to  disperse  and  retire  peaceably  to  their  respective  abodes  withiu  three 
days  from  this  date,  and  hereafter  abandon  said  combinations  and  submit  themselves 
to  the  laws  and  constituted  authorities  of  said  State;  and  I  invoke  the  aid  and  co- 
operation of  all  good  citizens  thereof  to  uphold  the  laws  and  preserve  the  i>ublic  peace. 

In  witness  whereof  I  ha\e  hereunto  set  my  baud  and  cansed  the  seal  of  the  United 
States  to  l>e  atlixed. 

Done  at  the  city  of  Washington  this  I7th  day  of  October,  liJ7t},  and  of  the  Independ- 
ence of  the  United  States  one  hundred  aud  one  vears. 

U.  S.  GRANT. 

By  the  President. 

John  L.  Cadwalader, 

Acting  Stcretary  of  Stale. 

The  following  order  was  issued  this  evening,  in  pursuance  of  the  action  taken  at  the 
Cabinet  mteting  to-day,  for  the  protection  of  the  public  peace  in  South  Carolina: 

War  Dkeartmext, 
Washington  City,  October  17,  1876. 
General  W.  T.  Sukrman. 

Commanding  United  Statts  Army: 
Sir:  In  view  of  the  existing  condition  of  atfairs  in  South  Carolina,  there  is  a  possi- 
bility that  the  procUiuiation  of  the  President  of  this  dat«  may  be  disregarded.  To 
provide  against  such  a  contingency,  you  will  immediately  order  all  the  available  force 
in  the  Military  Division  of  the  Atlantic  to  report  to  General  Ruger,  c<mimanding  at 
Columbia,  S.  C.,  and  instruct  that  officer  to  station  his  troops  in  such  h>calities  that 
they  may  be  most  speedily  and  etiectually  used  in  case  of  any  resistance  to  the  au- 
thority of  the  United  States.  It  is  hoped  that  a  collision  may  thuiS  be  avoided,  but 
you  will  instruct  General  Ruger  to  let  it  be  known  that  it  is  the  lixed  purpose  of  the 
government  to  carry  (uit  the  sjiirit  of  the  proclamation,  and  to  sustain  it  by  the  mili- 
tary force  of  the  General  Gt)vernmeut,  supidemented,  if  necessary,  by  the  militia  of 
the  various  Spates. 

Very  resperifullv,  vour  obedient  servan', 

J.  D.  CAMERON, 

Hecretary  of  War. 

Your  committee  have  thought  proper  to  insert  in  this  report  the  order 
of  Mr.  Secretary  of  War  Cameron,  as  tliat  official  in  his  zeal  to  carry 
out  the  projiTamme  of  electioneering:  by  the  bayonet,  wrote  his  celebrated 
order  ill  such  a  style  as  makes  manifest  the  real  designs  of  the  Federal 
administration. 

His  order  bears  the  date  17th  of  October,  issued  simultaneously  with 
that  of  tlie  President.  He  thinks  it  possible  the  President's  proclama- 
tion may  be  disiejjarded.  He  ])resumes  "disobedience,"  lawlessness, 
resistance.  Such  are  not  the  doctrine  of  the  law.  He  hurries  forward 
all  "available  trooi)s."  Yes,  there  was  need  of  haste,  for  only  twenty 
days  remained  until  the  election  was  to  be  held.  The  bayonet  tlixir  of 
life  to  the  "  cari)et-bag"  government  in  South  Carolina  must  be  speedily 
5.  Mis.  58 17 


258  DIGEST    OF    ELECTION    CASES. 

administered  or  it  would  be  too  late  to  save  it.  Therefore,  without 
waiting  to  see  the  effect  of  the  President's  proclamation,  at  great  ])ublic 
expense  and  trouble,  and  in  the  face  of  General  Euger's  dispatch,  dated 
only  the  day  before,  that  he  needed  no  more  troops,  all  the  troops  in  the 
military  district  are  hurried  to  South  Carolina.  The  Secretary  instructs 
General  Kuger  to  station  these  troops  at  the  most  available  points  for  use 
in  case  of  resistance  and  collision.  This  order  is  carried  out  in  true  military 
styleby  scatteringthe  troops  in  insignificant  squads  all  over  the  State,thus 
destroying  their  strength  and  rendering  them  in  case  of  real  collision 
an  easy  prey  to  an  enemy  inferior  in  strength,  who  could  destroy  them 
in  detail.  This  force  too  was,  if  need  be,  to  be  supplemented  by  ^'  the 
militia."  What  militia?  In  South  Carolina  the  militia  was  composed 
of  but  one  race.  The  colored  voters  constituted  "  the  militia."  They 
alone  were  organized  and  armed  with  the  State  arms.  The  whites  were 
unarmed.  There  was  in  this  threat*  to  supplement  the  Army  with  the 
militia,  a  most  diabolical  threat  of  setting  one  race  in  arms  against  the 
other  race,  and  that,  too,  in  time  of  great  political  excitement.  In  the 
first  Congressional  district  of  South  Carolina  the  troops  were  stationed 
at  eleven  places,  and  all  of  these  hapjiened  to  be  polling  places. 

Your  committee  undertakes  to  say  that  a  mere  causeless  invasion  of 
the  rights  of  the  people  of  a  State,  a  more  flagrant  disregard  of  consti- 
tutional obligation,  more  thorough  contempt  for  every  principle  of  free 
government  was  never  manifested  in  American  history,  than  the  send- 
ing of  troops  into  South  Carolina  in  October,  1876,  by  the  Federal  author- 
ities.    It  was  without  shadow  or  pretense  of  justification  or  excuse. 

It  is,  too,  a  most  singular  fact,  in  view  of  the  pretense  under  which 
the  trooi)S  were  sent,  that  so  soon  as  the  election  Avas  over  they  were 
withdrawn  from  the  interior  and  concentrated  at  Columbia,  the  capital 
of  the  State,  to  guard  the  count  and  the  officers  making  it;  and  there 
they  remained  in  the  state  house  until  the  administration  which  sent 
them  passed  away,  and  a  wise  constitutional  policy  withdrew  them  from 
the  State. 

The  effect  of  the  coming  of  the  troops  into  the  State  was  instanta- 
neous and  marked.  True,  the  soldiers  themselves  did  not  interfere,  but 
their  very  presence  was  enough.  The  colored  voters  were  told  that 
they  were  there  to  coerce  them  to  vote  the  Republican  ticket;  nay,  to  ar- 
rest and  cause  them  to  be  punished  if  they  did  not  do  so.  All  this  is 
set  forth  so  clearly  in  the  evidence  that  the  committee  deem  it  unneces- 
sary to  say  more  on  this  point  than  to  call  attention  to  the  subjoined 
extracts  from  the  testimony. 

Wade  Hampton,  governor  of  South  Carolina,  being  called  and  duly 
sworn,  deposes  and  says  (Record,  p.  243) : 

Question.  State  what  was  tlie  spirit  of  the  campaign  in  1876,  as  conducted  by  the 
Democrats  and  Republicans. — Answer.  On  the  part  of  tlie  Democrats  the  effort  was 
to  make  the  campaign  thoroughly  conservative  and  conciliatory,  I  was  in  all  the  coun- 
ties of  the  State,  and  saw  no  intimidation  by  Democratic  whites  or  negroes  against  Re- 
publicans, white  or  colored.  The  only  evidence  of  disorder  I  saw  was  in  the  tirst  Con- 
gressional district,  where  the  colored  Republican  voters  endeavored  to  intimidate  those 
of  their  own  color  who  wanted  to  vote  for  the  Democrats..  This  was  notably  the  case 
in  Georgetown,  where  they  used  every  effort  to  drive  the  colored  voters  from  joining 
the  Democrats,  and  I  heard  threats  of  violence  used  by  them.  I  was  satisfied  Init  for 
that  pressure  a  greater  number  of  the  colored  people  would  vote  with  the  Democrats. 
I  believe  that  this  spirit  of  race  proscription  was  exercised  all  over  the  State,  and  ex- 
ercised a  very  powerful  and  detrimental  influence  against  the  Democratic  party. 
All  the  addresses  of  the  Democratic  speakers  in  the  first  Congressional  district  were 
conciliatory.  Mr.  Richardson  accompanied  me  and  took  the  extreme  course  of  con- 
ciliation. 

Q.  Did  there  exist  any  necessity  for  the  proclamations  of  President  Grant  and  Gov- 


RICHARDSON    VS.    RAINLY.  259 

ernor  Cliaiubei-lain  disbaudiug  the  ritle-clubs  ? — A.  lu  my  judgment  there  was  no 
necessity.  Tlie  jiulg<s  ;ill  stated  that  there  was  no  resistance  to  legal  i)ii>ce8S  ;  in  my 
can\'jiss  I  saw  no  evidence  of  interference  with  or  resistance  to  law.  The  whole  ellbrt 
that  I  made  during  the  canvass  was  to  assure  th^ people  of  the  absidnte  necessity  of 
preserving  peace  and  abstinence  from  violence.  As  soon  as  the  proclamation  appeared 
I  advised  all  the  clul>s  to  disband,  aud  at  no  single  meeting  attended  by  me  in  the 
State  was  there  an  armed  organization  of  men. 

Q.  What  was  the  etfect  of  these  proclamat  ions  aud  of  the  introduction  of  United  States 
troops  n])on  the  colored  voters  ai:d  upon  the  election? — A.  1  think  that  the  presence 
of  the  tjoops  produced  a  great  change  among  the  colored  voters,  fronj  the  fact  that 
they  were  told  that  tlie  trooj)8  were  placed  here  for  the  purpose  of  making  them  vote 
the  Republican  ticket.  That  the  troops  not  being  placed  where  they  could  have 
given  protection  t  >  th>!  colored  Djiuof-r  its  exercised  an  inliuence  injurious  to  the  Dem- 
ocratic cause.  I  had  ap;dicatious  from  several  places  asking  that  troops  should  bo 
placed  to  protect  colored  Democrats.  I  did  apply  to  G  uei'al  Ruger;  troops  were  not 
sent,  on  the  ground  that  he  had  not  troops  enough  to  send  to  the  particnlar  places. 
Troojis  were  sent  generally  in  iarg^er  numbers  in  the  upper  counties  where  the  whites 
were  in  majority.  In  the  low  conutry  where  i\\e  Republicans  were  in  majority  fewer 
troojjs  were  sent. 

Q.  You  state  yon  saw  no  intimidation  by  Democratic  whites  or  negroes  against 
Rejjuidicans,  whiteor  colored.  Were  there  threatsmado  by  Deuiocratic  whites,  within 
your  knowledge,  that  they  would  not  give  employment  or  rent  their  lands  to  colored 
persons  who  should  vote  the  RepuJ^licau  ticket? — A.  I  heard  no  threats  of  this  kind, 
of  my  own  knowledge.  I  did  see  that  some  of  the  Democratic  clubs  did  say  they 
would  not  employ  those  who  voted  against  them.  That  p  dicy  has  not  met  my  ap- 
probation. All  the  enunciations  I  have  made  called  on  our  people  not  to  have  any 
proscription. 

Q.  Please  state  in  what  way  the  colored  Republican  voters,  in  the  first  Congressional 
<listrict,  endeavored  to  intimidate  those  of  tlieir  own  color  w  ho  wanted  to  vote  for  the 
Democrats. —A.  Most  of  the  information  I  have  came  from  the  colored  Democrats 
thtinselves,  who  said  that  threats  were  made  against  them  by  people  of  their  own 
color.  At  the  meetings  they  frequently  jeered  the  colored  Democrats;  and  at  George- 
town thi'y  followed  the  procession  through  the  town,  using  violent  language.  The 
l>rominent  colored  Republicans  and  women  tried  to  keep  the  colored  Democrats  from 
the  meeting,  aud  there  I  saw  the  only  act  of  violeuc;) ;  riiey  threw  a  brick  at  my 
carriage  ;  nothing  but  the  coolness  of  the  Democrats  prevented  a  riot. 

Q.  You  state  that  the  uegroes  were  told  that  the  troops  were  placed  here  for  the  pur- 
pose of  making  them  vote  the  Republican  ticket.  State  whether  th'  se  who  told  them 
so  had  authority  to  tell  them  so  ? — A.  I  don't  suppose  they  were  told  so  by  authority. 
Tiiey  were  led  to  believe  this  by  party  managers. 

Q.  Were  the  colored  Democrats  limited  to  any  particular  part  of  the  State  ? — A.  No ; 
colored  Democrats  voted  in  every  county  of  the  State. 

Q.  Was  the  proportion  of  colored  Democrats  to  colored  Republicans  greater  in  some 
parts  of  the  State  thnn  others? — A.  Yes;  the  proportion  was  greater  in  some  parts  of 
the  Slate  than  in  others.  In  Abbeville,  Barnwell,  Newberry,  the  proportion  was 
greater  than  in  Colleton,  Beaufort,  and  Georgetown. 

Q.  Were  there  no  troops  placed  in  Barnwell,  Abbey ville,  and  Newberry  ! — A.  Yes; 
there  were  troops  there. 

E.  W.  Moise,  being  called  and  sworn,  deposes  and  says  ( Record,  p.  241) : 

Question.  AVere  you  in  the  State  of  South  Carolina  duriug  the  election  held  on  7th 
November,  ISl'o  ? — Answer.  I  was,  and  canvassed  the  State  during  the  campaign, 

Q.  What  was  the  policy  of  the  campaign  on  the  part  of  the  Democrats? — A.  To 
make  as  much  exhibition  of  power  as  they  could,  but  to  avoid  any  acts  of  actual 
violence, 

Q.  Was  there  during  the  campaign  any  resistance  to  civil  process,  or  any  interrup- 
tion of  the  due  and  legal  execution  of  the  laws?— A.  I  know  of  none  such,  and  saw 
none  such.    "   . 

Q.  Do  you  know  anything  of  the  introtluction  of  the  United  States  troops  in  the 
State,  and  the  effect  thereof? — A.  United  States  troops  were  introduced  into  the  State 
just  previous  to  the  election,  and  I  regard  the  effect  as  enabling  the  colored  Republi- 
cans to  intimidate  the  colored  persons  who  had  previously  proposed  to  vote  the  Demo- 
cratic ticket. 

Q.  State  any  instance  you  know  of  this. — A.  I  have  been  informed  by  my  tenants, 
being  colored  Republicans,  who  had  proposed  to  vote  the  Democratic  State  ticket  and 
tor  Mr.  Hayes  in  this  election,  that  they  were  afraid  to  do  so  because  of  the  threats 
used  toward  them  by  other  colored  Republicans  to  the  effect  that  they  would  either 
be  placed  in  slavery  or  lose  some  rights  which  they  then  enjoyed  if  the  Democrats 
went  iuto  power,  aud  that  the  troops  had  been  sent  here  for  the  purpose  of  requiring 


260  DIGEST  OF  ELECTION  CASES. 

tbe  colored  people  to  adhere  to  tht-ir  party,  and  for  preventing  tlie  white  people  from 
persuading  them  or  inducing  them  to  vote  the  Democratic  State  ticket. 

Q.  Can  you  give  any  names  ? — A.  I  can.  The  foreman  on  my  plantation  in  Claren- 
don County,  named  Alfred  Lemon,  informed  me  in  the  presence  of  General  Wade  Hamp- 
ton and  othei-s  at  Manning,  in  said  county,  that  he  proposed  to  vote  for  the  State  Dem- 
ocratic ticket,  and  that  the  men  on  the  plantation  jtroiiosed  todi>1he  same.  He  after- 
ward informed  me  that  he  had  not  done  so  for  the  reasons  above  stated. 

Q.  Do  you  know  of  any  other  instances  of  intimidation  toward  the  colored  people 
during  the  late  election  ?— A.  I  do.  I  was  present  at  the  mass-meetinj;  at  Sumter, 
addres.se<l  by  Mr.  Chamberlain,  Mr.  (  ardoza,  William  E.  John.son,  senator  from  Sumter, 
and  others.  1  heard  Mr.  Canloza  say  tiiat  the  colored  man  who  would  vote  for  the 
Democrats  in  this  election  would  deserve  to  lose  his  freedom,  and  I  heard  William  E. 
Jolnison  S4iy  that  the  Democrats  would  treat  them  as  Ehui  was  treated  in  the  Bilde; 
that  Ehul  was  a  portly  man  like  the  treasurer;  that  a  petition  was  presented  to  him, 
and  that  when  he  asked  to  read  the  petition  the  petitioner  advanced  to  him,  and  when 
he  got  close  plunged  a  knife  in  his  bowels;  and  so,  he  s-aid,  will  the  Democrats.  They 
otter  you  fair  promise  now,  but  if  you  ever  let  them  get  control  they  will  lay  something 
on  your  liacks.  This  was  hear<l  by  from  two  or  three  lh<)usand  colored  peo|le.  I  also 
know  that  a  man  named  Albert  Howell,  in  the  town  of  Sumter,  a  colored  hackman,  was 
gtruck  by  a  colored  woman  with  an  umbrella,  simply  because  he  spoke  to  her,  alleging 
that  she  did  not  peimit  any  colored  Democrat  to  speak  to  her. 

Q.  On  the  day  of  7th  Novetuber,  did  you  see  any  troops  of  the  United  States  near  any 
of  the  poUrf  ? — A.  Yes.  At  Sumter  I  saw  two  otHcers  and  a  detachment  of  United  States 
troops  under  arms,  for  three  or  four  days  before  and  three  or  tour  days  after  the  elec- 
tion and  on  the  day  of  election.  Their  camp  was  not  over  four  hundred  yards  from  the 
polling-place.     Sumter  is  in  the  lirst  v  ongressional  district. 

James  Conner  (Kecorcl,  p.  243  ): 

Q.  What  do  you  know  of  the  introduction  of  United  States  troops  into  this  State 
during  the  canvass,  and  the  ettect  upon  the  roters,  and  especially  the  colored  voters? — 
A.  I  know  nothing  of  the  introdnction  of  the  troops;  I  only  know  that  they  came, 
and  that  their  coming  was  accepted  by  the  negroes  of  the  low  country  as  an  indication 
that  the  government  intended  that  the  negroes  should  vote  the  Republicau  ticket  It 
was  generally  accepted  that  the  object  of  their  coming  w  as  to  overawe  the  Democrats 
and  to  prohibit  the  riHe-clubs,  or  rather  to  disband  them.  In  lirief,  it  was  to  depress 
and  neutralize  the  Democrats  and  embolden  and  strengthen  the  Republican  leaders, 
and  it  succeeded  and  accomplished  that  work  efiectnally. 

Q.  What  eftect  had  the  proclamations  of  President  Grant  and  Govei'uor  Chamberlain 
disbanding  the  rifle- clubs f — A.  I  don't  think  the  proclamations  had  any  eftect  at  all; 
it  was  the  Federal  troops  enforcing  the  proclamations  which  gave  life  and  efficacy  to 
them.  I  don't  think  one  negro  in  a  hundred  could  either  read  or  understand  the  proc- 
lamations, but  they  could  all  see  the  United  States  troops,  and  understant!  what  they 
we'-e  there  for. 

Q.  What  do  you  know  of  intimidation  by  colored  voters  of  other  colored  voters 
who  wanted  to  vote  the  Democratic  ticket  ? — A.  I  kuow^  nothing,  except  in  Charleston 
County,  and  there  the  intimidation  of  colored  voters,  Democratic  voters,  by  colored 
Kepublicans,  was  general  and  very  effective.  Large  numbers  who  had  pledged  them- 
selves recanted  and  said  the  pressure  was  too  heavy. 

Q.  Do  you  know  of  any  actual  or  threatened  violation  of  the  public  peace  in  the 
first  Congressional  district,  which  the  civil  authorities  could  not  easily  and  readily 
suppress? — A.  None. 

Q.  Under  whose  control  has  the  State  government — legislative,  judicial,  and  execu- 
tive— been  since  18t5«  f^-A.  For  the  past  eight  years  the 

F.  W.  McMaster,  being  called  and  sworu,  deposes  and  says  (Record, 
p.  243) : 

Question.  State  what  you  know  of  the  spirit  of  the  late  campaign  in  1S7H,  as  con- 
ducted by  the  Democrats  and  Republicans. — Answer.  I  was  actively  engaged  as  can- 
vasser in  four  counties.  In  every  ono  extraordinary  eftoris  were  made  for  the  concili- 
ation of  the  negroes.  I  know  of  nothing  on  tiie  part  ot  the  whites  against  the  ne-roes. 
I  have  seen  aoiue  intimidatioc  attempted  to  be  exercise<l  by  Radical  negroes  against 
Democratic  negroes,  and  have  heard  of  many  instances,  esitecially  on  the  part  ol  negro 
women  against,  colored  Deumcrats.  In  Columbia,  on  3d  November,  when  Hampon 
addressed  the  people  here,  I  rode  at  the  head  of  the  procession.  Ihere  was  some 
Democratic  negroes  in  the  procession.  There  was  bands  of  negro  women  on  the  pave- 
ments, jibing,  ridiculing,  and  abusing  them.  The  intimidation  of  coloied  Democrats 
by  colored  Republicans  was,  in  my  opinion,  general  and  at  times  serious.  I  have  no 
doubt  it  had  great  effect  in  preventing  many  colored  people  from  voting  with  the 
Democrats.    1  was  struck  with  this  at  three  public  gatheriugs,  where  I  considered  it 


RICHARDSON    VS.    RAINEY.  261 

required  a  good  deal  of  heroism  for  a  negro  to  declare  himself  a  Democrat.  Two  of 
these  meetings  were  Democratic  meetings;  the  other  a  Republican  meeting. 

Q  Did  tht^re  exist  any  necessity  for  the  proclamatiou  of  President  Grant  and  Gov- 
ernor Chan\berlain  disbanding  the  ride-clubs f — A.  There  was  not  the  slighest  neces- 
sity for  such  proclamation.  The  State  was  in  profound  peace.  There  was  no  resist- 
ance (o  legal  process.  The  course  of  justice  was  not  interrupted,  so  far  as  I  know.  I 
heard  of  commoiions  on  the  Combahee  rice  plantations,  confined  to  the  negroes. 

Q.  What  was  the  etfect  of  the  ])roclamations  of  President  Grant  and  Governor 
Chamberlain  disbanding  the  rifle-clubs  and  of  the  presence  of  United  States  troops 
introduced  in  the  State  upon  the  colored  voters? — A.  It  infused  into  the  colored  mind 
that  the  time  for  the  forty  acres  and  the  nuile  had  come.  It  paralyzed  the  negro  who 
was. willing  to  voti'  witli  us  and  embold^-ned  the  Republican  negroes.  They  acted 
with  the  idea  that  they  were  re<iuired  by  General  Grant  to  vote  the  Repnblicaa  ticket. 

William  Wallace,  beings  sworn,  says  (Record,  p.  247): 

Question.  State  what  was  the  spirit  in  which  the  campaign  in  1876  w^as  conducted 
on  the  p:irt  of  the  Democrats  an<l  Republicans. — Answer.  On  the  part  of  the  Demo- 
crats great  activity  wiis  nsed.  The  State  had  been  ruined  by  the  Republican  Govern- 
ment, and  they  intended  to  use  every  lawful  and  proper  means  to  redeem  the  State. 
The  campaign  was  conducted  ])eacefuliy  and  in  a  conciliatory  manner.  It  was  the 
first  time  that  <mr  white  peoj)le  had  gone  regularly  into  a  canvass  with  the  negroes. 
They  wanted  to  give  the  negro  the  opportunity  of  hearing  the  truth,  which  they  had 
not  heard  before  in  any  political  canvas^,  and  the  etfect  wad  tremendous.  Had  things 
been  left  to  the  normal  and  legitimate  influences,  I  believe  the  State  would  have  gone 
Democratic  by  50,000  inajorit.v. 

Q.  What  was  the  etfect  of  the  proclamations  of  President  Grant  and  Governor 
Chamberlain  disbanding  the  rifle-clubs,  and  of  the  presence  of  United  States  troops 
introduced  into  the  State  on  the  colored  voters? — A.  It  had  the  etfect  of  taking  away 
thfit  confidence  v\  hich  the  negroes  were  beginning  to  have  in  the  native  white  people 
of  the  State  again.  It  made  them  feel  that  they  were  powerless  to  protect  them 
against  those  of  their  own  race  who  were  still  under  the  control  of  their  Radical 
leaders. 

Leroy  F.  Youmaus  (Record,  p.  250) : 

Q.  AVas  there  anything  in  the  condition  of  the  country  justifying  the  proclamation 
of  President  Grant  and  Governor  Chamberlain,  and  the  introduction  of  United  States 
troops? — A.  In  my  judgment  there  was  not.  Tiie  State  was  in  profound  quiet,  legal 
process  unobstructed,  and  the  administration  of  the  laws  uninterrupted.  In  fact,  up 
to  a  very  short  time  befor.^  the  nomination  of  Hampton  for  governor  by  the  Dem- 
ocrats, a  large  fraction  of  that  party  was  opposed  to  any  nomination  in  opposition  to 
Mr.  Chamberlain's  re-election,  the  most  influential  Democratic  newspaper  in  the  State 
ably  and  zealously  advocating  that  course. 

Q.  What  was  the  etfect  of  the  proclamation  and  the  introduction  of  the  troops  upon 
the  election? — A.  Tu  my  judgment  it  widened  whatever  breach  may  have  existed  be- 
tween the  two  races,  and  impeded  the  tendency  to  union  in  political  action  which  had 
been  rapidly  gaining  ground,  and  very  largely  increased  the  Republican  vote,  colored, 
and  diminished  the  Dcjuiocratic  colored  vote  which  otherwise  would  have  been  given. 

Q.  Has  the  registration  required  by  the  constitution  ever  been  carried  into  eft'ect; 
and,  if  not,  why  not? — A.  It  has  not,  for  the  reason  that  the  Republican  party,  which 
for  eight  years  ha^s  had  entire  control  of  all  the  departments  of  the  State  government, 
and  also  of  the  local  judiciary  and  local  financial  matters  in  the  counties,  has  chosen 
to  disobey  the  positive  mandate  of  the  constitution. 

Cross-examined  by  Mr.  Cavender,  for  contestee: 

Q.  Please  state  in  what  way  the  introduction  of  troops  widened  the  breach  between 
the  two  races. — A.  The  published  utterances  of  the  governor  immediately  preceding 
the  proclamations,  ami  the  introduction  of  more  troops,  threatened  material  injury 
to  the  State,  in  terms,  and  naturally  induced  the  belief  that  the  subsequent  acts  of  the 
governor  and  President  would  be  dictated  with  the  desire  to  advance  the  Interests  of 
colored  Republicans  at  the  expense  of  white  Democrats. 

Q.  Please  state  what  utterances  of  the  governor  you  allude  to. — A.  Especial  alla- 
sion  is  m.ide  to  hi-*.  Chamberlain's,  letter  to  Col.  A.  C.  H.wkell,  chairman  of  the  execu- 
tive committee  of  the  State  Democratic  committee,  published  in  the  papers  and 
widely  circulated  as  a  campaign  document. 

Q.  What  was  the  general  teuorof  that  letter  J — A.  Bitter  denunciation  of  the  white 
Democrats  and  threats  of  injury  to  thi  material  interests  of  th-i  State  constituted  its 
tenor  in  this  regard.  The  letter  itself  would  luruish  the  best  answer  to  the  question; 
it  was  published  early  in  October,  1876. 

Q.  Do  you  think  that  bitter  denunciation  of  white  Democrats  and  threats  of  ma- 
terial inj.iry  to  the  State  very  largely  increased  the  colored  Republican  vote  and  de- 


262  DIGEST    OF    ELECTION    CASES 

creased  tbo  Democratic  colored  vote? — A.  I  tliiuk  they  did,  followed  by  the  prochiiiia- 
tions,  and  the  introdnctiou  of  the  troops  foreshadowed  Therein. 

William  E.  James,  having  beeu  called  as  a  witness  for  the  contestant, 
and  duly  sworn,  testified  as  folloiivs,  to  wit  (Record,  p.  7l'G): 

Question.  Are  you  a  resident  of  Darlington  County,  and  were  yon  present  at  the 
last  general  election? — Answer.  I  am  and  was. 

Q.  What  is  your  occupation? — A.  Planter. 

Q.  But  for  the  interference  in  that  election  by  the  State  and  Federal  executives  by 
proclamations  and  by  the  introduction  of  troops  into  the  State,  whicii  party,  in  your 
judgment,  would  ha\e  carried  the  county. 

(Objected  to  as  calling  for  an  expression  of  opinion.) 

A.  The  Democratic  party.  This  was  conceded  by  prominent  members  of  the  Kopub- 
lican  party. 

B.  W.  Edwards  (Record,  p.  698): 

Q.  Was  the  introduction  of  United  States  troops  regarded  by  both  parties  as  a  politi- 
cal measure? 

(Objected  to  as  not  being  in  rebuttal  and  as  being  matter  of  opinion  and  cumula- 
tive. ) 

A.  It  was  so  regarded  by  the  Democratic  party,  and  I  believe  it  was  by  the  Republi- 
can. The  Democrats  so  regarded  it,  because  it  was  entirely  unnecessary  for  any  other 
purpose.  When  Governor  Chamberlain  issued  his  proclamation  to  the  clubs  which  he 
styled  rille-clnbs  to  disband,  they  did  immediately  break  up  their  organiscations  and 
discontinued  anything  that  might  be  construed  inilitary  maneuvering,  so  that  there 
was  no  pretext  for  sending  United  States  troops  into  Darlington  County. 

Q.  What  effect  had  their  coming  upon  the  election  ? — A.  It  increased  the  Republican 
vote  and  decreased  the  Democratic  vote.  It  was  commonly  said  (objected  to  as  to 
what  the  witness  would  say  as  hearsay)  that  the  Republicans  told  thwm,  the  colored 
voters,  that  the  sohliers  were  '<eut  there  to  see  that  they  voted  the  Republican  ticket, 
and  the  effect  upon  their  minds  and  actions  vt- rified  the  statement. 

Again  at  pages  704  and  705 : 

Q.  How  do  you  say  that  the  Democratic  vote  was  decreased  by  the  coming  of  the 
troops,  when  you  know  that  they  polled  their  full  strength  in  this  county,  and  when 
you  have  good  reason  to  know  that  more  colored  men  voted  this  ticket  at  the  point 
where  the  most  troops  were  and  the  longest  stationed,  and  where  you  say  yonr.self  that 
more  colored  men  voted  the  ticket  than  at  any  prt-vious  election,  and  where  you  don't 
know  what  the  Republican  and  Democrat  vote  of  the  county  was? — A.  When  I  say 
the  Democratic  party  voted  their  full  strength,  I  meant  the  white  people,  but  we  ought 
to  have  carried  with  us  the  colored  people,  and  had  the  prospect  of  carrying  a  much 
larger  number  prior  to  the  introduction  of  troops  than  we  did  carry.  After  it  was 
known  that  troops  were  to  be  introduced,  I  could  observe  the  chilling  «  ftecjts  upmi  the 
Democratic  campaign  and  the  strength  it  gave  the  Re|>ublican  party,  the  leaders  of 
which  used  it  effectually  against  us,  and  thereby  diminished  the  number  ol  Democratic 
colored  votes  and  increased  the  number  of  Republican  votes. 

Q.  What  did  you  hear  these  leaders  say  about  the  troojjs? — A.  I  didn't  hear  them 
say  very  much,  as  they  didn't  come  to  our  meetings  or  favor  our  going  to  theirs. 

A.  S.  White,  a  Republican,  having  been  called  as  a  witness  for  the 
contestant,  after  being  duly  sworn,  testified  as  follows,  to  wit  (Record, 
p.  710): 

Question.  Up  to  a  very  short  time  before  the  7  th  of  November  last,  was  there  any 
unusual  disorder  or  disturbances  of  tlie  jieuce  in  Darlington  County  f 

(Objected  to  as  calling  for  opinion  and  as  being  cumulative  and  liot  in  rebuttal.) 

Answer.  I  know  of  none. 

Q.  In  your  opinion,  was  the  introduction  of  United  States  troops  in  this  portion  of 
the  State  pending  the  late  election  called  for? 

(Objected  to  for  the  same  reasons  as  the  foregoing  question.) 

A.  No,  sir. 

i^.  What  was  the  effect  of  the  introduction  of  the  troops  upon  the  election  f 

(Objected  to  for  the  same  reasons  as  the  foregoing  question.) 

A.  It  tended  to  discourage  the  Democrats  and  encourage  the  Republicaas. 

Q.  Was  not  their  coming  regarded  as  a  political  measure? 

(Objected  to  on  the  same  ground  as  the  previous  question.) 

A.  It  was  generally  so  considered. 

Q.  Did  the  Democratic  organizations  of  this  county,  in  your  judgment,  tend  to  inter- 
fere with  the  freedom  of  the  election  ? 


RICHAEDSON    VS.    RAINEY.  263 

(Objected  to  as  ii  matter  of  opiniou.) 

A,  1  think  not. 

Q.  Were  there  any  indications  that  the  Republicau  voters  were  deterred,  through 
fear,  from  voting?— rA.  I  saw  none.  • 

Q.  Were  they  not,  in  your  judgment,  fully  alive  to  their  advantages  of  numbers,  the 
prestige  of  previous  victories,  the  moral  and  i)hy8ical  supjiort  of  the  State  and  Federal 
Government  ? 

(Objected  to  as  calling  for  matters  of  opinion.) 

A.  I  think  they  were.  ^ 

Again,  at  page  713: 

Qi  Please  state  in  what  way  the  presence  of  United  States  troops  aflfected  the  elec- 
tion ? — A.  The  impression  prevailed  that  the  National  Government  backed  the  Repub- 
lican party  in  South  Carolina. 

Q.  Witli  whom  did  this  impression  prevail  ? — A.  With  all  classes. 

Q.  Did  the  troo|)s  in  any  way  interfere  with  the  election,  or  in  any  way  influence 
or  change  votes  ?  If  so,  state  how,  and  the  means  used. — A.  They  didn't  interfere  in 
any  way,  nor  did  they  change  votes,  unless  by  their  presence. 

Q-  How  did  the  coming  of  the  troops  discourage  the  Democrats? — A.  Only  by  en- 
couraging the  Republicans  to  vote  solidly. 

Q.  Do  you  mean  to  say,  when  you  say  that  the  Democrats  were  discouraged,  that 
they  did  not  i)oll  their  full  strength  in  this  county  ? — A.  Can't  say  that,  as  I  can't  say 
what  the  full  vote  was ;  I  mean  by  being  discouraged  that  they  would  have  polled  a 
heavier  vote  if  the  troops  had  not  been  here. 

Q.  How  many  votes  would  they  have  polled  if  the  troops  had  not  been  here? — A. 
I  don"t  know,  sir. 

Q.  How  many  did  they  poll  ? — A.  I  don't  know,  sir. 

Q.  If  you  <lou't  know  how  many  they  polled,  or  how  many  they  would  have  polled, 
how  can  you  say  but  for  the  troops  they  would  have  polled  more  ? — A.  They  were  in 
hopes  to  poll  more. 

Q.  Wheu  you  say  that  the  coming  of  the  troops  encouraged  Republicans,  do  you 
mean  lo  say  that  it  gave  them  the  assurance  of  voting  as  they  pleased,  or  what  do  you 
mean  f — A.  I  have  answered  the  question, 

Q.  Did  the  coming  of  the  troops,  in  your  opinion,  do  more  with  the  Republicans 
than  assuring  them  of  a  free  ballot  ? — A.  I  think  it  did. 

Q.  What  more? — A.  They  massed  a  considerable  quantity  of  arms  near  the  ballot- 
box,  in  the  jail  here,  which  they  would  not  have  attempted  if  the  troops  had  not  been 
here. 

Q.  I  uuderstand  you,  then,  to  say  that  the  placing  of  these  guns  in  the  jail  was  from 
the  intlnence  of  the  troops  upon  colored  voters? — A.  I  have  answered  the  question. 

Q.  Is  it  not  a  fact  that  about  the  time  polls  closed  the  Democrats  called  upon  the 
troops  to  guard  those  arms  in  jail,  and  they  did  so  ? — A.  I  cannot  say  that  that  is  a  fact ; 
I  communicated  this  fact  to  Lieutenant  D«ams,  both  in  person  and  by  Captain  Earle, 
the  supervisor  at  the  poll  (on  the  part  of  the  Democrats  as  I  am  informed). 

Q.  How  was  tliii  coming  of  the  troops  generally  considered? — A.  It  was  considered 
as  indorsing  the  State  government  and  backing  it. 

Q.  Did  you  not  go  with  the  Republicausto  the  first  Republican  Timmonsville  meet- 
ing?— A.  I  went  with  J.  A.  Smith  and  no  crowd  at  ali. 

A.  0.  Spain,  Ijaving  been  called  as  a  witness  for  the  contestant,  after 
being  duly  sworn,  testified  as  follows,  to  wit  (Record,  p.  714) : 

Am  a  resident  of  the  town  of  Darling,  and  was  present  the  7th  of  November,  1876. 

Question.  What  was  your  prof  .ssion  f — Answer.  A  lawyer. 

Q.  Can  you  speak  as  to  the  etiect  of  the  introduction  of  the  United  States  troops 
into  the  canvass  of  Darlington  County  ? — A.  The  introduction  of  troops  into  the  State 
of  South  Carolina  produced  a  very  marked  effect  in  the  county  of  Darliugtou  before 
any  troops  were  ever  heard  of  in  Darlington  Countj'.  The  governor  of  South  Carolina 
had  issued  a  proclamation  full  of  slander  of  the  Democrats,  so  far  as  Darlington  County 
was  concerned;  upou  that  ]»roclaauition  the  President  of  the  United  States  acted,  on 
the  assumption  that  the  Democrats,  with  arms  in  their  hands,  were  using  their  organ- 
ization and  arms  to  force  the  negroes  to  vote  the  Democratic  ticket.  Based  upou  this 
slander  the  military  force  of  the  United  States  were,  on  the  call  of  the  governor,  sent 
by  the  Piesi<lent  of  the  United  States  into  South  Carolina,  the  result  being  a  wide- 
spread imjtression  that  the  troops  were  intended  to  influence  the  election  directly  by 
sustaining  one  party  (the  Repul)lican),  and  in  acting  antagonism  to  the  other  (the 
Democratic).  The  ignorant  colored  voter  adopted  the  view  of  the  governor  and  Presi- 
dent, and  acted  on  it. 

(This  answer  is  object*  d  to,  as  being  matter  of  opinion,  and  as  interpreting  the 
proclamations  of  the  President  aud  the  governor,  which  are  aln  ady  in  the  case.^ 


264  DIGEST  OF  ELECTION  CASES. 

Q.  Ill  your  opinion  were  there  any  circumstances  which  warranted  the  introduction 
of  United  States  forces? — A.  There  were  no  circumstances  in  the  county  of  Darling- 
ton warranting,  the  introduction  of  the  troops.  Tlie  cii'cumstances  upon  which  the 
troops  were  iutrodnced  were  created  by  the  governor  himself;  Jhey  did  not  exist  in 
fact. 

(Objected  to  as  matter  of  opinion,  and  as  not  being  in  rebuttal.) 

Q.  But  for  the  iuteiference  of  the  State  aufl  Federal  executives,  is  it  or  not  your 
belief  that  the  Democrats  woiild  have  carried  this  county? 

(01>.jected  to,  as  calling  for  opinion.) 

A.  Before  the  moral  and  physical  influence  of  the  State  and  Federal  Government 
were  brought  to  bear  upon  the  election,  I  did  entertain  an  opinion  that  the  chance  to 
carry  Darlington  County  for  the  Democrats  was  a  fair  one.  I  never  was  as  sanguine 
about  it  as  others.  After  these  proclamations  and  the  introduction  of  the  troops,  I 
noticed  a  very  wide  change  in  the  opinions  and  conduct  of  the  colored  people,  and 
they  became  intensely  antagonistic  in  their  feelings  and  conduct  to  the  Avliites.  I 
heard  from  a  number  of  colored  persons,  men  and  women,  that  President  Grant  had 
taken  sides  with  them,  and  I  have  heard  them  say,  in  conversations  that  I  have  had 
with  them,  that  they  could  not  vote  against  the  radical  ticket. 

G.  W.  Bargan,  haviiijgf  been  called  as  a  witness  for  the  contestant, 
after  being  duly  sworn,  testified  as  follows,  to  wit  (Record,  p.  729) : 

Question.  Are  you  a  resident  of  DarHngtou  County,  and  were  you  present  at  th« 
general  election  of  November  7,  1876? — Answer.  I  am,  and  was. 

Q.  Your  occupation  ? — A.  Lawyer. 

Q.  What  was  the  state  of  feeling  between  the  two  political  parties  here  early  in 
the  campaign? — A.  No  bitterness  in  the  early  part  of  the  contest. 

Q.  What  was  the  state  of  feeling  immediately  preceding  the  election  ? — A.  Very 
bitter. 

Q.  Can  you  account  for  thisT— A.  It  was  the  natural  result  of  the  prolongation  of 
the  contest,  aggravated  by  the  proclamations  of  Governor  Chamberlain  and  President 
Grant. 

Q.  In  your  judgment,  what  ett'ect  had  these  proclamations,  and  the  threatened  and 
actual  introduction  of  troops  into  the  State,  upon  the  two  political  parties? — A.  The 
loss  of  thou>and8  of  votes  to  the  Democracy. 

Q.  In  your  judgment,  but  for  those  measures,  which  party  would  have  carried  this 
county  ? — A.  The  Democratic  party,  by  several  hundred  votes. 

Q.  What  was  the  purpose  of  the  Democratic  organizations  in  this  county  ? — A.  De- 
fensive, no  far  as  I  know,  aun  purely  political. 

Q.  Were  they  military  organizations? — A.  They  were  not. 

Q.  Were  you  or  not  an  officer  of  the  club  at  this  place? — A.  I  was. 

Q.  What  has  always  been  your  position  in  politics? — A.  Always  been  conservative. 
I  was  a  Chamberlaiu  man  up  to  the  time  of  General  Hampton's  nomination.  I  was 
opposed  to  General  Hampton's  nomination. 

Q.  Have  not  the  Republicans  of  this  county  sought  to  put  you  in  nomination  for 
office?— A.  I  have  beeu  approached  by  Repuljlicans  of  some  prominence  on  various 
occasions  and  asked  to  allow  my  name* to  be  used  for  office. 

W.  P.  Gee,  baving  been  called  as  a  witness  for  the  contestant,  after 
being  duly  sworn,  testified  as  follows,  to  wit  (Record,  p.  734): 

Question.  Are  you  a  resident  of  Darlington  County,  and  were  you  present  on  the 
7th  of  November,  1876?— Answer.  Yes;  I  am,  and  was  at  and  voted  at  the  Florence 
precinct. 

Q.  You  live  in  the  Ebenezer  neighborhood  and  are  by  occupation  a  planter? — A.  I 
do,  and  am. 

Q.  Did  the  Ebenezer  Democratic  club  ever  drill  with  arras? — A.  They  did  not. 

Q.  Do  you  know  au>-thing  of  arms  being  sent  to  the  colored  Republicans  at  Eben- 
ezer preceding  the  election?— A.  Y'es,  sir;  I  know  that  they  had  them;  I  saw  them 
with  them  ;  they  were  breech-loading  rifles;  they  said  they  "were  State  arms. 

Q.  Had  they  ammunition  ? — A.  They  had  acconterments  and  cartridge-boxes,  and 
said  they  had  ammunition. 

Q.  Had  they  had  these  arms  long  before  the « lection  ? — A.  It  was  a  short  time  before 
I  saw  them. 

Q.  Did  they  have  them  after  the  proclamations  of  the  governor  and  President  ? — A. 
They  still  had  them. 

(To  all  of  the  above  qnestions  and  answers  relating  to  arms  or  ammunition,  con- 
testee's  counsel  objects:  1st,  because  it  is  not  in  reply;  yd,  it  is  irrelevant  to  any  as- 
pect of  the  case;  3d,  as  it  appears  in  the  answers,  the  whole  matter  testified  to'  is  a 
matter  of  hearsay  only.) 

Q.  After  these  proclamations,  and  after  the  introduction  of  troops  into  the  State, 


RICHARDSON    VS.    RAINEY.  265 

did  yon  observe  any  change  in  the  colored  voters! — A.  I  did  not  until  they  came  here; 
then  I  did. 

(Oliject  to  (jnestion  and  answer  as  cnninlative  and  not  in  reply.) 

Q.  In  your  judgment,  what  eftect  had  the  iiroclaniatiou  and  troops  npon  the  colored 
voters? — A.  Those  that  wouldn't  vote  for  hs  manifested  a  s])irit  of  not  voting  either 
way,  hnt  after  the  troops  came  here  they  said  they  would  vote  the  Republic  lU  ticket. 

Q.  Then  you  think  that  their  presence  hurt  the  Democrats  in  the  election  ? — A.  Yes, 
sir. 

Q.  If  United  States  troops  had  not  been  first  threatened  and  then  introduced  into 
the  State  and  county,  judging  from  all  you  saw  and  beard  among  the  colored  voters 
during  tlie  early  stages  of  the  canq^aign,  what,  in  your  judgment,  would  have  been 
the  result  of  the  canvass  in  Sumter  County?  Wouhl  the  election  have  gone  Demo- 
cratic or  Republican  ?— A.  I  can't  say  for  tlie  county,  as  I  was  away  from  home  very 
little  during  thecampaigii,  but  I  am  sure  a  great  many  more  colored  men  would  have 
voted  tbe  Democratic  ticket  here  at  Bishopvilie,  had  it  not  been  for  the  introduction 
of  United  States  troops  into  the  State  and  county. 

Q.  State  the  facts  on  which  you  base  this  judgment. — A.  Before  the  troops  were  in- 
troduced into  Sumter  County,  uumViers  of  the  colored  people  expressed  a  des  re  and 
willingness  to  vote  the  Democratic  ticket  with  the  white  jieople  ;  but  after  the  United 
States  troo])scame  ihey  ceased  all  communication  with  the  whites,  submitted  them- 
selves entirely  to  the  dictation  and  control  of  their  leaders,  and  ajipeared  to  consider 
the  jjiesence  of  the  troo])s  here  as  an  indication  of  the  active  .support  of  the  Repub- 
lican i)arty  by  the  United  States  Government,  and  the  reason  why  they  must  vote  the 
Republican  ticket. 

T.  D.  Foxworth  (Record,  p.  685): 

Q.  Was  there  any  threats  or  intimidation  used  by  Republicans  against  their  own  color 
during  the  campaign  ?  If  so,  state  all  you  know  about  ibis. — A.  Yes,  there  were  threats. 
I  did  not  hear  any  threats,  but  several  of  the  colored  men  told  me  during  the  cam- 
paign, before  the  electi  •n,  that  they  were  afraid  for  their  lives  and  property  if  they 
voted  the  Democratic  ticket.  They  said  tliey  were  threatened  so  by  the  colored  peo- 
ple in  the  neighborhood.  Several  of  the  colored  voters  told  me  that  they  wanted  to 
go  with  tlie  Democrats  and  would  vote  the  Democratic  ticket,  but  they  were  afraid  for 
their  lives  and  i)io]!erty. 

Q.  If  United  States  troops  had  not  been  first  threatened  and  then  actually  intro- 
duced into  the  State  and  county,  what  would  have  been,  in  your  judgment,  the  result 
of  the  canvass  in  Sumter  County  ? — A.  It  would  Jiave  been  stronger  for  the  Democrats. 
I  think  the  county  would  have  gone  Republican. 

J.  W.  Stuckey  (Record,  p.  672) : 

Q.  If  United  States  troops  had  not  been  first  threatened,  and  then  introduced  into 
the  State  and  county,  judging  from  all  you  saw  and  heard  among  the  colored  voters 
during  the  early  stages  of  the  campaign,  what,  in  your  judgment,  would  have  been  the 
result  of  the  canvass  in  Sumter  County  ?  Would  the  idection  have  gone  Democratic  or 
Republican? — A.  My  judgment  and  belief  it»  that  if  the  United  States  troops  had  not 
been  sent  to  the  State  and  county  the  election  would  have  gone  Democratic. 

Q.  State  the  facts  upon  which  you  base  this  judgment. — A.  Before  the  troops  were 
sent  into  this  county,  numbers  of  colored  voters  expressed  a  desire  and  intention  to 
vote  the  Democratic  ticket  with  the  white  people,  but  after  the  United  States  troops 
came  they  changed  their  intentions,  ajipearing  to  be  influenced  by  the  impression  that 
the  troops  were  .sent  here  to  see  that  they  did  vote  the  Republican  ticket. 

M.  E.  McDonald  (Record  p.  667): 

Question.  What  is  your  age,  and  where  did  you  live  during  the  campaign  T — Answer. 
Shih)h  Township,  Sumter  County;  age  thirty-four. 

Q.  Where  did  you  vote  on  7th  November  last? — A.  At  Lynchburg. 

Q.  Did  you  see  John  H.  Legare,  United  States  deputy  marshal,  that  day  ? — A.  I  did. 

Q.  Were  any  troops  stationed  at  Lynchburg  on  that  day? — A.  Yes ;  about  150  yards 
from  the  polls. 

Q.  Did  John  H.  Legare,  United  States  d  puty  marshal,  say  to  you  or  within  your 
hearing,  that  those  troops  were  subject  to  his  orders? — A.  He  was  reading  a  paper, 
■which  he  said  was  United  States  law  of  elections.  He  said  the  campaign  was  over; 
that  all  we  could  do  now  was  to  oti'er  a  man  a  licket;  if  we  went  any  further  we 
would  render  ourselves  liable.  "Those  United  States  troops  ymider  are  sent  here  to 
arrest  any  man  that  I  will  point  out."  He  said  he  did  not  want  to  arrest  any  one,  but 
was  sorry  he  would  have  it  to  do.  Said  there  would  be  fifty  arrests  at  Bishopvilie; 
that  the  man  who  had  been  sent  there  was  a  ])erfect  tyrant. 

Q.  Was  there  not,  from  United  States  deputy  marshal's  conduct  and  threats  of  what 
he  would  do  with  the  troops,  a  wide-spread  intimidation  among  the  democratic  vo- 


266  DIGEST    OF    ELECTION    CASES. 

ters;  aud  are  you  not  satisfied  tliat  many  votes  were  lost  to  the  democrats  at  Lyuch- 
burg  precinct  by  reason  of  this  condnct  of  Legare's  ? — A.  Yes,  I  arn  ;  to  both. 

J.  T.  Mcintosh  (Record,  p.  — ) : 

Question.  What  is  your  age ;  where  were  you  during  the  campaign  ? — Answer.  I  am 
twenty-six;  was  in  Lynchburg  Township,  Sumter  County. 

Q.  Were  yon  at  Lynchburg  poll  on  7th  Novemb<?r  last  ? — A.  Yes. 

Q.  Did  von  see  United  States  Deputy  Marshal  John  H.  Legare  about  the  polls  that 
day?— A.  I  did. 

Q.  What  did  he  say  ?— A.  J  heard  him  say  that  the  United  States  troops  were  subject 
to  his  orders,  and  would  arrest  any  one  he  ordered  to  be  arrested. 

Q.  Were  you  afraid,  along  with  the  other  people,  to  electioneer? — A.  Yes. 

J.  M.  Sanders  (Record,  p.  663) : 

Question.  What  is  your  age,  and  where  did  you  live  during  the  campaign  ! — Answer. 
I  am  fifty-five;  Lynchburg  Township,  Sumter  Coiinty. 

Q.  Did  you  hear  J.  S.  Richardson  speak  at  Lynchburg  during  the  campaign  ? — A. 
Yes;  twice,  I  think;  once  certainly. 

Q.  Did  he  advocate  force  gr  violence  as  a  means  of  carrying  the  election  ? — A.  Nu; 
he  used  very  strong  arguments  that  if  the  colored  Republicans  would  go  with  the 
Democrats  we  would  have  a  better  government. 

Q.  Where  were  you  on  day  of  election  ? — A.  I  was  here  in  Lynchburg  during  the 
latter  part  of  the  day. 

Q.  Did  yon  hear  of  J.  H.  Legare,  deputy  United  States  marshal;  and  if  so,  what? — 
A.  I  heard  that  he  was  taking  down  the  names  of  many  persons,  and  it  was  supposed 
that  ihey  would  be  carried  to  Charleston. 

Q.  What  were  the  charges  against  the  parties? — A.  Those  who  took  an  active  part 
in  electioneering  were  to  be  put  on  the  list ;  also  for  alleged  acts  of  intimidation.  It 
was  a  prevailing  rumor.     Many  of  my  friends  warned  me  to  *'  look  sharp." 

Q.  Such  were  your  fears,  engendered  by  these  rumors,  that  you  were  very  cautious 
in  electioneering;  was  it  not  so? — A.  I  came  here  to  e.'iercise  my  privilege  as  a  free 
citizen  of  speaking  to  the  people  in  the  mildest  and  gentlest  manner  to  induce  them 
to  vote  the  Democratic  ticket ;  but  I  at  once  abandoned  all  idea  of  electioneering,  and 
kept  out  of  Legare's  way. 

Q.  Did  yon  hear  that  United  States  troops  werjnnder  Legare's  orders  ? — A.  I  thought 
80  ;  1  was  confident  of  it. 

Q.  How  far  were  the.  troops  from  the  polls? — A.  About  two  hundred  yards  or  less, 
and  in  view  outside  of  buildings,  1  suppose.  ■ 

Q.  Do  you  know  anything  of  intimidation  of  blacks  by  blacks? — A.  Cannot  give  in- 
stances, but  I  am  satisfied  that  many  colored  persons  who  desired  to  vote  the  Demo- 
cratic ticket  were  intimidated  by  their  colored  neighbors. 

A.  H.  Frierson  (Record,  p.  661): 

Question.  What  is  your  age?— Answer.  Fifty-six. 

Q.  Where  did  yon  live  during  the  election? — A.  Lynchburg  Township,  Sumter 
County. 

Q.  Where  did  you  vote  ? — A.  At  Lynchburg. 

Q.  Judging  from  what,  you  saw  of  the  conduct  of  colored  voters  before  the  intro- 
duction of  the  troops  and  after  their  introduction,  do  yon  or  do  you  not  think  that  the 
call  for  an  introduction  of  troops  had  a  decided  etfect  upon  the'voterst— A.  I  think  it 
had. 

Q.  How  ? — A.  I  think  it  prevented  some  of  the  colored  voters  from  voting  the  Dem- 
ocratic ticket.  It  had  been  reported  •among  the  colored  peoi)le  that  if  they  voted  the 
Democratic  ticket  they  would  be  arrested  by  the  troops.   , 

Q.  Do  you  know  of  any  blacks  intimidating  others  from  voting  the  Democratic 
ticket  ? — A.  Not  in  my  personal  observation,  but  to  the  best  of  my  knowledge  and  be- 
lief, there  was  a  wide-spread  intimidation  of  blacks  by  blacks. 

Q.  J.  H.  Legare  testified  in  his  examination  for  Rainey  that  the  troops  were  a  half 
mile  otf  and  not  in  sight ;  is  thit-  true  or  false  t — A.  It  is  false.  They  were  fully  in  sight 
and  within  200  yards  of  the  polls. 

Q.  J.  H.  Li'gare  says  that  he  did  not  say  to  any  one  on  the  day  of  the  election  at 
Lynchburg  that  the  troops  stationed  here  were  subject  to  his  orders  and  would  arrest 
whoever  he  directed  aiTcsted.  Do  you  know  this  to  be  false? — A.  I  know  it  to  be 
false. 

Q.  Did  Legare  speak  to  yon  on  election-day  on  that  point  ? — A.  Yes.  He  said  those 
troops  (pointing  to  the  tents  which  were  in  sight)  are  subject  to  my  order;  exposed 
his  badge  as  United  States  deputy  marshal  ;  said  ho  was  deputy  marshal,  to  satisfy  me 
that  he  had  authority  over  the  troops. 

Q.  Did  Legare  electioneer  on  that  day  ?— A.  I  do  not  think  he  did. 


RICHARDSON    VS.    RAINEY.  267 

Q.  Did  he  say  anything  to  prevent  electioneering  ? — A.  He  said  the  canvass  closed 
yesterday  at  0  o'clock,  and  there  should  he  no  more  electioneerinnj. 

Q.  Did  not  the  statements  of  Legare  leave  the  impression  on  your  uiind  that  elec- 
tioneering on  Ihnt  day  was  a  violation  of  law  of  the  United  States  ? — A.  Yes  ;  and  that 
we  were  liable  to  be  arrested  for  it,  and  that  he  had  the  authority. 

Q.  Were  yon  not  yourself  so  intimidated  by  the  conduct  and  statements  of  J.  H. 
Legare  as  to  deter  you  from  taking  an  active  part  in  electioneering  that  day  ? — A. 
Yes. 

Q.  Were  not  the  white  people  generally  intimidated  from  the  same  cause  ? — A.  Yes  ; 
several  expressed  themselves  to  me  iu  that  way. 

Q.  Did  Legare  take  the  same  pains  to  stop  colored  Republicans  from  electioneer- 
ing f— A.  No. 

Q.  Were  the  negroes  very  active  ? — A.  They  were.  I  have  seen  as  many  as  three 
after  one,  eleclionetring. 

R.  Witherspoon  (Eecord,  p.  655) : 

Q.  What  is  your  opinion  of  the  effect  of  the  introducing  the  tpoops? — A.  I  think  it 
went  against  the  Democratic  party. 

Q.  Why  ? — A.  I  think  it  made  many  vote  the  Republican  ticket  who  would  not  have 
done  so.  or  would  have  staid  at  home. 

Q.  Do  you  think  tlie  Republicans  could  have  carried  this  county  without  the  intro- 
duction of  United  States  troops  into  the  State  ? — A.  I  do  not. 

Q.  Do  you  know  any  instances  of  colored  Democrats  being  intimidated  by  colored 
Republicans? — A.  No;  not  iu  my  personal  observation. 

Q.  To  your  best  knowledge  and  belief,  was  there  or  not  a  wide-spread  intimidation 
by  colored  Republicans  of  men  of  the  same  color  who  wished  to  vote  the  Democratic 
ticket  ? — A.  There  was. 

J.  A.  Mills  (Record,  p.  65G) : 

Q.  What  was  the  etiect  of  the  introduction  of  United  Statfs  troops  here  upon  the 
election  f — A.  It  was  certainly  very  doiinieutal  to  the  Democratic  cause. 

Q.  Had  it  not  a  bnll-dozing  effect  njion  the  colored  voters? — A.  It  certainly  kept 
them  in  the  Rej)ul)liean  ranks,  aud  prevented  them  from  joining  the  Democrats. 

Q.  To  your  best  knowledge  and  belief,  was  there  or  not  a  wide-spread  intimidation 
by  eidored  Republicans  of  colored  men  who  wished  to  vote  the  Democratic  ticket  ? — A. 
There  Avas.  One  colored  voter  told  me  he  would  join  the  Democrats  if  he  was  not 
afraiil. 

J.  H.  Wilson  (Record,  p.  654) : 

Q.  What  do  you  think  of  the  effect  of  introducing  United  States  troops  ? — A.  1  think 
it  was  detrimental  to  the  Democrats.  One  colored  man  asked  me  if  he  would  be  allowed 
to  vote  the  Democratic  ticket  since  the  United  States  troops  had  arrived.  Said  he  had 
been  told  by  other  colored  men  that  they  would  not  be  allowed  to  vote  the  Democratic 
ticket. 

Q.  What  effect  did  flie  introduction  of  United  States  troops  have  upon  the  election 
in  this  county  ? — A.  I  think  it  likely  if  they  had  not  come  the  Democrats  would  have 
carried  it. 

Q.  To  your  best  knowledge  and  belief,  was  there  or  was  there  not  a  wide-spread  in- 
timidation of  colored  voters? — A.  There  was. 

J.  H.  Cooper  (Record,  p.  651  )i 

Q.  Have  you  not  reason  to  believe  that  there  was  wide-spread  intimidation? — A.  I 
believe  that  there  was.  I  was  told  (objection  by  contestee)  by  a  colored  man  that  he 
would  vote  the  Democra'ic  ticket,  but  feared  that  the  colored  people  would  double- 
team  on  him  and  beat  bim  to  death. 

Q.  Were  there  other  evidences  satisfactory  to  your  mind? — A.  There  were. 

Q.  Do  you  know  if  any  United  States  troops  were  introduced  into  this  county  during 
the  election  ? — A.  Yes;  saw  them  at  Sumter. 

Q.  Where  were  they  stationed?— A.  At  Sumter  Conrt-House. 

Q.  Is  that  one  of  the  largest  voting-precincts  in  the  county? — A.  It  is. 

Q.  What  is  your  opinion  of  the  effect  u  pon  the  colored  voters  of  the  introduction  of 
United  States  troops  into  the  county  during  the  campaign  f 

(Objection  by  contestee.) 

A.  I  think  litiudreds  voted  the  Republican  ticl;et  who  would  have  voted  the  Demo- 
cratic ticket,  or  would  not  have  voted  at  all. 

Q.  Have  you  any  idea  that  the  county  could  have  been  carried  by  the  Rei)ublican8 
without  the  use  of  Uni'.ed  States  troops? — A.  My  opinion  is  it  would  have  gone  Demo- 
cratic. 

Q.  Why  do  you  say  so? — A.  I  judge  troui  what  has  been  tohl  me  by  colored  men. 


268  DIGEST    OF    ELECTION    CASES. 

At  least  two  of  them  told  me  that  the  troops  were  sent  here  to  compel  the  colored 
people  to  vote  the  Republican  ticket. 

J.  A.  Mayes  (Record,  p.  647): 

Q.  From  your  personal  observation,  what  efifect  did  the  presence  of  United  States 
troops  have  in  the  county  upon  the  voters? — A.  Not  being  in  the  part  of  the  couuty 
■where  troops  were  stationed,  I  know  nothing  of  my  own  personal  observation. 

Q.  What  is  your  opinion  as  to  the  effect  upon  the  olored  voters  of  the  belief  that 
United  States  troops  were  in  the  county? 

(Objected  to.) 

A.  Think  it  caused  .1  large  portion  of  Republican  voters  to  think  that  United  States 
troops  were  brought  here  for  the  purpose  of  compelling  the  Republican  voteis  to  vote 
against  the  Democrats.     This  was  and  still  is  my  opinion. 

Q.  Do  you  believe  that  the  presence  of  United  States  troops  had  a  bull-dozing  effect 
upon  the  Republican  voters  ? 

(Objection  by  contest ee.) 

A.  Yes;  I  think  it  did. 

Q.  The  alleged  reason  of  Governor  Chamberlain,  in  his  proclamation  calling  for 
troops,  do  you  believe  to  be  the  real  reason? 

(Objection  by  contestee.) 

A.  I  QO  not.  I 

Q.  What  was,  in  your  opinion,  the  real  object  ? 

(Objection  by  contestee.) 

A.  I  think  the  real  object  was  to  keep  the  Republican  voters  in  line,  and  to  prevent 
them  from  voting  the  Democratic  ticket. 

Q.  Was  or  was  it  not  done  to  Imll-doze  colored  voters  f — A.  That  was  my  impression. 
Governor  Chamberlain,  seeing  that  the  Democrats  were  thoroughly  orgahized,  had 
troops  brought  into  the  State  to  coimtiract  that. 

W.  J.  Rees  (Record,  p.  636): 

Q.  You  state  that  had  not  United  States  troops  been  introdnced  into  Sumter  County* 
more  colored  people  would  have  voted  the  Democratic  ticket;  why  so? — A.  I  think 
the  colored  people  had  begun  to  show  a  disposition  to  listen  to  Democratic  speakers, 
and  come  out  to  their  meetings;  and,  as  WfU  as  I  can  recollect,  they  stopped  comipg 
to  Democratic  meetings  after  the  troops  arrived.  Only  those  who  were  membi  rs  of 
the  Democratic  clubs  came  out  after  the  troops  came. 

Q.  Yon  state  that  if  any  difficulty  should  arise,  the  troops  were  here  to  help  the 
Republicans;  what  do  you  mean  by  that? — A.  I  was  told  by  a  colored  Republican 
that  he  had  been  told  by  his  leaders*  that  he  would  not  be  allowed  to  vote,  and  that 
the  troops  were  here  for  the  purpose  of  seeing  that  they  would  be  allowed  to  vote. 

Johu  H.  Burgess  (Record,  p.  633): 

Q.  How  did  the  appearance  of  troops  here  have  the  effect  of  making  the  colored 
Republicans  believe  that  the  United  States  Government  wished  them  to  vote  the  Re- 
publican ticket? — A.  Before  the  troops  came  here  I  think  the  colored  people  were 
inclined  to  listen  to  us,  but  after  the  arrival  of  the  troops  their  behavior  changed. 

Q.  Did  the  troops  interfere  to  prevent  the  colored  people  from  listening  to  you  ? — 
A.  They  did  not  directly,  except  throiigh  the  indnence  of  their  presence  here. 

Q.  How  did  their  presence  here  interfere  ? — A.  I  believe  that  they  were  told  that  the 
troops  were  sent  here  for  the  purpose  of  keeping  up  the  Republican  ranks. 

Q.  From  all  you  saw  and  heard  during  the  campaign,  what,  in  your  judgment,  would 
have  been  the  result  of  the  election  in  Sumter  County  had  the  United  States  troops 
not  have  been  introduced  into  the  State  and  into  the  county  ? — A.  I  think  the  Demo- 
cratic candidates  would  have  received  very  manj'  more  votes  than  they  did  receive. 

Q.  Give  the  reason  on  which  you  found  your  judgment  ? — A.  In  my  opinion  the  ap- 
pearance of  troops  here  had  the  effect  of  making  the  colored  Republicans  believe  that 
the  United  States  Govermueut  wished  them  to  vote  the  Republican  ticket. 

But  your  committee  can  cumber  this  record  with  no  further  extracts 
from  the  testimony  on  this  point.  Many  other  witnesses  testified  sub- 
stantially as  thuse  whose  evidence  is  cited.  There  cannot  remain  a  doubt 
in  the  impartial  mind  that  the  sending  of  the  troops  of  the  United  States 
into  South  Carolina  and  the  uses  made  of  their  presence  did  produce  a 
marked  and  controlling  effect  upon  the  result  of  the  election,  amply  suf- 
ficient of  itself  to  justify  your  committee  in  declaring  the  election  null 
and  void. 

But  even  had  no  effect  been  proven,  we  are  not  prepared  to  say  but 
that  their  very  presence  at  the  polling-places,  the  mere  fact  of  their  being 


RICHABDSON    VS.    HAINEY.  261) 

sent,  without  proof  of  effect,  would  of  itself  be  ^nflfieient  to  set  as^ide  and 
annul  the  election.  Our  Enjilish  ancestors,  from  whom  our  laws  and 
ideas  of  constitutional  freedom  are  derived,  have  been  wisely  jealous  of 
the  slightest  tani])ering:  or  interference  with  an  election  by  the  Govern- 
meni,  and  especially  through  its  armed  forces. 

Over  one  hundred  years  ago  an  English  statute  declared  the  will  of 
Englishmen  on  this  subject  as  follows: 

Be  it  enactfd  by  the  Kiini^s  moat  excellent  Mojti^in,  hy  atid  with  the  advice  and  consent 
of  the  Lorda,  spiritual  and  temporal,  and  Commons  in  I'arliamint  assembled,  and  by  the 
authority  of  the  same,  That  when  and  as  often  as  any  elertion  of  any  i)ecr  or  peers  to 
represlut  the^^peers  of  Scotlaiid  in  Parliament,  or  any  nembei  or  nienihers  to  serve 
in  Parliament,  shall  be  appoiuteil  to  be  made,  the  Seeretary  at  War  for  the  time 
being,  or  in  case  there  shall  be  no  Secretaiy  at  War,  then  sncli  peison  who  shall 
officiate  in  the  place  of  the  Secretary  at  War,  siiall,  and  is  hereby  required,  at  some 
convenient  time  before  the  day  appointed  for  snch  election,  to  issue  and  send  forth 
proper  orders,  in  writinp^,  for  the  unioval  of  every  such  regiment,  troop,  or  company, 
or  other  numbi  r  of  soldiers  as  shall  be  quartered  or  billeted  in  any  snch  city,  bor- 
ough, town,  or  place  where  such  election  shall  be  appointed  to  be  made,  out  of  every 
such  city,  borough,  town,  or  place,  one  day  at  the  least  before  the  day  appointed  for 
such  election,  to  the  distance  of  two  or  more  miles  from  such  city,  borough,  town,  or 
place,  aforesaid,  until  one  day  at  the  least  after  the  poll  to  be  tnken  at  such  election 
shall  be  ended  and  the  poll-books  closed. 

It  is  saddening  to  the  political  student  to  rea<l  this  statute  and  then 
retiect  that  one  hundred  years  later  a  Government  which  boasts  its  free- 
dom the  most  enlarged  and  enlightened  that  men  have  ever  enjoyed, 
should  send  troops  into  the  very  presence  of  the  voters  to  overawe  and 
control  an  election. 

And  another,  the  greatest  of  law-writers,  perhaps,  declares : 

And  as  it  is  essential  to  the  very  being  of  Parliament  that  elections  should  be  ab- 
solutely free,  therefore  all  undue  influences  upon  the  electors  are  illegal  and  strongly 
prohibited.  P\)r  Mr.  Locke  ranks  it  among  those  breaches  of  trust  in  the  executive 
magistrate  which,  according  to  his  notions,  amounts  to  a  dissolution  of  the  Govern- 
ment, "  if  he  employs  thf  force,  treasure,  and  otfiees  of  the  society  to  corrupt  the  repre- 
sentatives or  openly  to  pre-engage  the  electors  and  prescribe  what  manner  of  perbons 
shall  be  chosen.  For  thus  to  regulate  candidates  and  electors  and  new-model  the 
ways  of  elections,  what  is  it,  "  says  he,  "  but  to  cut  up  the  Government  by  the  roots  and 
poison  the  very  fi)untain  of  public  security  ?  "  As  soon,  therefore,  as  the  time  and  place 
of  election,  either  in  counties  or  boroughs,  are  fixed,  all  soldiers  quartered  in  the  place 
are  to  remove,  at  least  one  day  betoie  the  election,  to  the  distance  of  two  n  iles  or 
more,  and  not  to  return  till  one  day  after  the  poll  is  ended.  (Blackstone's  Commen- 
taries, vol.  1,  p.  177.) 

And  this  has  been  the  underlying  doctrine  of  all  English  decisions 
n  cases  of  interference  with  elections. 

At  an  election  held  for  member  of  Parliament  for  Westminster,  over 
one  hundred  and  thirty  years  ago,  by  order  of  three  magistrates,  a  body 
of  Engli-sh  troops  were  marched  up  and  halted  in  the  church-yard  of 
St.  Paul,  Covent  Garden,  very  near  the  polls,  where  the  balloting  was 
proceeding.  Upon  being  intormed  of  tbis  fact  by  the  Speaker,  the 
House  of  Commons  passed  unanimously  the  following  resolution: 

That  the  presence  of  a  regular  body  of  armed  soldiers  at  an  election  of  members  to 
serve  in  Parlianunt  is  a  high  infringement  of  the  liberties  of  the  subject,  a  manifest 
violation  of  the  freedom  of  elections,  and  an  open  deiiauce  of  the  laws  and  coustitn- 
tion  of  this  kingdom. 

And  by  the  order  of  the  House  the  three  offending  magisrtrates  were 
arrested  iw.d  brought  to  its  bar  and  com])elled  to  kneel,  in  which  posi- 
tion they  were  rejjrimanded  by  the  Speaker  for  the  breach  of  English 
libeity  in  daring  to  procure  the  presence  of  troops  at  an  election  for 
member  of  Parliament;  and  this  was  history  thirty-five  years  before 
the  firing  of  the  first  gun  of  the  American  Revolution;  it  was  law  and 
recognized  as  such  by  a  Government  which  then  claimed  the  right  to 


270  DIGEST    OF    ELECTION    CASES. 

impose  taxation  without  reproseutatioii,  and  wliicb  bad  not  relaxed  the 
prerogatives  of  the  crown  and  taken  on  that  s[)irit  of  liberty  wbicb  dis- 
tinguishes the  British  Government  to  day.  Tbe  underlying  idea  was 
that  tbe  representatives  of  tbe  people  should  come  free  and  untram- 
meled  from  a  iVee  and  untrammeled  ])eople;  that  tbe  body  of  tbe  Com- 
mons, being  tbe  representatives  of  tbe  people  and  a  ebeck  in  favor  of 
popular  liberty  against  the  kingly  power,  should  be  in  tbe  method  of 
their  election  free  Irom  all  kingly  influences.  For  if  tbe  King  could  in- 
terfere and  control  tbe  elections,  and  overawe  the  people,  and  occasion 
the  election  of  bis  creatures  and  partisans,  then  would  this  great  repre- 
sentative body  but  be  J-he  slave  and  tool  of  tbe  King,  and  the  truimph  of 
the  one  man  power  over  tbe  peojjle  was  accomplished.  Such,  indeed,  is 
tbe  spirit  and  tenor  of  all  the  Englisb  decisions. 

But  we  are  asked  bj'  contestee's  counsel  to  go  into  a  critical  examina- 
tion of  tbe  testimony  and  to  endeavor  to  ascertain  the  exact  results  of 
the  intimidating  influences.  He  contends  that  undue  influence  in  an 
election  must  be  shown  to  have  affected  tbe  result  materially.  In  this 
he  is  in  the  main  correct.  In  the  entire  district  over  o4,00{J  votes  were 
polled.  Cnly  about  500  witnesses  were  examined,  and  many  of  tbese 
in  regard  to  facts  other  than  the  subject  of  intimidation.  It  is  impossi- 
ble to  tell  tbe  exact  change  produced  by  tbe  intimidating  influences, 
nor  is  it  essential.  It  is  suffici*  nt  tbat  three  hundred  witnesses,  white 
and  colored,  Democratic  and  Republican,  and  some  of  them  men  of  the 
highest  cbaracter,  swear  positively  to  tbe  general  \vide-S])readand  ])0w- 
erful  influence  and  change  produced  by  tbe  intimidating  influences. 
McCrary's  Law  of  Elections  lays  down  tbe  rule,  p.  SiiO,  wbitdi  we  regard 
as  correct:  "If  tbe  violence  and  intimidation  bave  been  so  extensive 
.  and  general  as  to  render  it  certain  that  there  has  been  no  free  and  fair 
expression  by  the  great  body  of  electors,  tben  the  election  mui^t  be  vset 
aside,  notwitbstanding  tbe  fact  tbat  in  some  of  the  precincts  or  counties 
there  was  a  peaceable  election."  And  in  tbe  Canada  case,  already  quoted 
from,  Justice  Eitchie  said,  in  delivering  his  opinion :  "And  thougb  I  bave 
no  means  of  computing  or  ascertaining  tbe  exact  extent  of  tbe  terror  or 
undue  influences,  it  was  still  in  my  opinion  such  and  so  great  an  inter- 
ference with  the  freedom  of  the  elections  as  demands  that  tbe  election 
should  be  annulled."  That  these  undue  influences  were  general  and 
powerful  and  caused  the  greatest  change  is  admitted  by  the  counsel 
for  contestee,  himself  a  Carolinian  and  a  gentleman  of  great  attain- 
ments. 

On  pages  58  and  59  of  his  brief,  after  giving  a  fearful  picture  of  the 
ruin  and  desolation  brought  on  South  Carolina  by  her  carpet-bag  rulers, 
he  continues : 

At  last  this  condition  of  tbiugs  became  unend arable.  The  better  class  of  Republi- 
cans, the  more  inttlligent  and  industrious  of  the  colored  people  thtmsolves,  felt  and 
ackn()wle>lg«d  that  social  existence  was  in  danger. 

E^rly  in  187G  preparations  were  made  for  the  fall  elections.  At  first  it  was  uncer- 
tain whether  the  white  Democrats  would  join  the  bettor  leaders  of  the  Republican 
party  and  enable  them  to  reform  and  control  their  following.  In  niatiy  portions  of  the 
State  the  colored  people  themselves  manifested  a  willingness  to  get  rid  of  their  cor- 
rupt and  insolent  leaders.  The  Democratic  party  finally  detormined  that  their  only 
security  was  to  get  absolute  possession  of  the  Government.  They  nominated  General 
Hampton  and  a  full  ticlcet.  This  nomination  was  a  resurrection  of  life  and  spirit, 
almost,  I  believe,  entirely,  unparalleled.  From  the  mountain. districts,  in  which  the 
white  Democracy  bad  a  sure  majoritj-,  thiough  the  more  doubtful  middle  districts,  into 
the  vc-y  heart,  of  the  coast  districts,  where  the  vast  colored  majority  were  concen- 
trated, the  enthusiasm  spread.  At  first,  and  to  some  extent,  it  caught  the  sympathy  of 
the  impulsive  negro  ;  but,  as  it  spread,  the  Republicans  found  that  for  tbem  it  was 
either  union  or  destruction.  The  ciiaracter  of  the  ticket,  the  declarations  of  the  cam- 
paign, the  astounding  strength  and  passion  of  the  movement,  satisfied  the  Republican 


KICHARDSON    VS.    RAINEY.  271 

leaders  that  there  was  no  compro'.uise  to  be  negotiated.  It  was  either  victory  or  such 
a  defeat  aswouhl  s\veei)them  out  of  the  State.  They  selected  a.s  their  leader  Governor 
Chamberlain,  whose  culture,  ability,  and  honest  eUoi  t  at  reform  during  his  past  admin- 
istration made  him  by  far  the  best  representative  they  could  present  to  those  who,  out- 
side of  the  State,  were  -watching  the  progress  of  the  conllict.  They  appealed  to  the 
colored  man  with  even  more  veheineuce  than  when  th^y  originally  won  him.  There 
was  not  a  prejudice,  an  apprehension,  which  they  did  not  arouse  skillfully.  They 
alamied  him  with  the  prospect  of  disfranchisement,  return  to  slavery.  They  excited 
his  wives  and  daughters  with  the  fear  of  restoration  to  their  menial  condition  and  the 
proliibition  of  all  the  small  vanities  in  which  they  delighted.  They,  to  a  large  extent, 
succeeded,  and,  as  a  body,  the  negroes,  especially  in  the  old  large  slaveholding  dis- 
tricts—the fornu^r  districts  of  large  estates  and  great  owners — went  back  to  their  old 
convictions.  They  dropped  ott'iroin  the  Democratic  clubs.  Tliey  were  shy  of  talking 
polities  as  in  the  early  summer.  Their  preachers  pre,tehed  and  prayed,  and  their 
women  stormed,  and,  as  a  general  rule,  they  all  voted  the  Republican  ticket. 

Here,  then,  is  the  fair  and  square  admission  of  the  social,  spiritual, 
and  actual  intimidation  of  the  colored  people  over  those  of  their  own 
race  who  thought  to  be  free  eno^igh  to  vote  as  they  plea.«ed. 

And  on  page  02  he  broadly  admits  the  intimidating:  influences  of  the 
troops  by  reason  of  the  ar(fuments  dr  men  from  their  coming  into  and  i)res- 
ence  in  the  State  and  near  the  polls.     He  says,  page  62  : 

The  cau)paign  of  1876  was  a  contest  between  the  intelligence,  character,  aiid  prop- 
erty of  the  State  on  one  side,  and  a  ruinous  and  corrupt  administration  on  the  other. 
The  interests  at  stake  were  so  obvious  that  great  iinml)ers  of  the  colored  people  hesi- 
tated, decided  to  abandon  their  party.  Jind  promised  to  vote  with  the  Democrats.  But 
the  sending  of  troops  into  the  State  made  them  aware  that  the  great  Republican  i>arty 
of  the  North  and  the  administration  did  not  sympathize  with  the  Democratic  move- 
ment, thought  it  dangerous  for  the  colored  people  and  threatening  to  the  national  su- 
premacy of  the  Republican  party,  and  under  this  influence  the  vacillating  body  of  col- 
ored voters  went  back  to  their  party  allegiance. 

The  admission  of  .his  counsel  is  the  admission  of  contestant ;  and 
here  is  his  broad,  open,  frank  admission,  that  tlie  coming  of  the  troops 
made  a  great  change  in  the  minds  of  "great  numbers"  of  the  colored 
voters.  And  witli  this  admission  on  his  lips  how  can  he  expect  to  retain 
his  seat  here?  He  admits  that  he  holds  it,  not  by  the  choice  of  a  free 
untrammeled  peoi)le,  but  by  the  majority  of  a  herd  of  frightened,  dis- 
mayed, duped,  and  terrorized  voters. 

But  contestant,  whose  pacific  and  manly  course  during  the  election,  as 
shown  by  the  record,  and  whose  consummate  ability  in  the  manage- 
ment of  his  cause,  or  rather  the  cause  ot  his  people,  has  won  the  highest 
respect  and  sympathy  of  the  committee,  sets  forth  and  shows  that  the 
intimidating  influences  set  on  foot  by  the  Republicans  did  not  reach  or 
aflect  the  entire  district;  that  troops  were  sent  into  but  four  of  the 
eight  counties  that  constitute  the  district,  and  he  contends  that  the 
intimidated  counties  and  precincts  should  be  thrown  out,  and  the  peace- 
ful counties  and  precincts  counted,  which,  being  done,  would  elect  him 
and  entitle  him  to  the  seat.  Aud  lie  cites  the  cases  of  Wallace  v.  Simp- 
son, Sheldon  v.  Hunt,  Sypher  v.  St.  Martin,  Darrall  v.  Bailey,  2d  Bart- 
lett,  pp.  099  to  754. 

It  is  very  true  that  these  cases  were  decided  by  a  Republican  Con- 
gress. They  do  lay  down  the  doctrine  contended  for  by  the  contestant. 
Party  expediency  might  now  suggest  that  the  Republican  party  that 
made  these  precedents  ought  to  be  bound  by  them.  If  we  should  treat 
these  decisions  as  containing  the  true  doctrine  of  elections,  if  we  could 
regard  them  as  other  than  exi)ressions  of  partisan  intolerance,  there 
would  be  no  diflBculty  in  reporting  a  resolution  awarding  the  seat  in 
contest  to  the  contestant. 

But  in  the  first  place  the  undue  and  illegal  influences  exercised  by  the 
Republicans  upon  the  colored  people  through  their  social,  religious,  and 
semi-military  organizations  extended  nearly  throughout  the  entire  dis- 


272  DIGEST    OF   ELECTION    CASES. 

trict ;  and  in  the  next  place  we  find  troops  sent  into  four  counties  the 
aggregate  vote  of  which  was  21,091,  while  in  the  other  four  weaker 
counties,  where  there  were  no  trooi)s,  the  vote  was  but  12,987.  To  ex- 
clude 21,691  votes  out  of  a  total  of  34,678  votes  and  count  the  residue 
and  declare  a  result  would  be  to  permit  an  election  by  a  minority. 
This  is  admissible,  it  is  true,  where  the  election  was  fair,  and  all  had  an 
opportunity  to  vote  as  they  chose  and  failed  only  through  apathy. 
Such  is  not  the  case  here  wiiere  34,678  voters  cast  their  ballots.  But 
a  very  large  portion  of  these,  sufficient  to  have  changed  the  result,  cast 
their  ballots  under  such  undue  and  illeg^d  influences  as  to  utterly  de- 
stroy the  fairness  and  freedom  of  the  election.  Under  such  circum- 
stances we  cannot  admit  that  it  would  be  right  to  ])ermit  a  minority  to 
elect.  In  the  case  of  Sypher,  cited  above,  the  report  of  the  committee 
which  laid  down  the  doctrine  of  minority  elections  was  expressly  over- 
ruled, vide  McCrary's  Law  of  Elections,  pp.  324,  325,  326. 

The  true  rule  in  such  cases  seems  to  your  committee  to  be,  that  a 
minority  can  only  elect  where  the  majority,  with  full  opportunity  and 
facility  to  vote  as  they  choose,  unrestrained  and  untrammeled  by  undue 
influence,  refrained  through  apathy  or  neglect  from  voting.  But  when 
undue  influence,  terrorism,  intimidation,  or  illegal  iniiuences  have  been 
brought  to  bear  upon  the  gieat  mass  of  the  voters,  and  they  have  been 
influenced,  and  have  voted  subject  to  these  influences,  although  the  full 
and  accurate  extent  of  such  influence  cannot  be  arrived  at,  the  entire 
election  should  be  voided,  although  a  minority  may  have  voted,  free 
from  such  influences,  and  for  this  reason:  The  entire  ])eople  in  such 
case  evinced  a  desire  to  vote.  The  right  of  the  majority  to  rule  is  fun- 
damental. In  such  a  case  the  will  of  the  majority  is  defeated,  not  from 
apathy,  but  from  undue  influence.  The  true  remedy  is  to  void  the  elec- 
tion, remove  the  undue  influences,  and  give  the  majority  that  opportu- 
nity to  rule  which  is  its  undoubted  right. 

Your  committee  trusts  that  the  day  of  sending  troops  to  influence  and 
carry  elections  has  gone  by  forever.  In  the  case  of  South  Carolina,  in 
1876,  no  more  flagrant  violation  of  law  and  utter  disregard  of  the  Con- 
stitution of  the  country  and  the  rights  of  States  and  people  was  ever 
shown,  even  under  the  most  tyrannical  forms  and  administrations  of 
Government. 

Your  committee  believe  that  troops  were  sent  into  that  State  for  no 
other  purpose  than  to  carry  the  election.  And  iii  this  view,  they  sol- 
emnly declare  that,  in  their  opinion,  any  election  in  which  the  influences 
of  armed  soldiers  are  apparent  to  any  general  extent,  in  which  the  Fed- 
eral Government  has  sought  to  interfere  with  its  armed  forces,  and  has 
interfered  so  as  to  cast  doubt  ui)on  the  result,  ought  ipso  facto  to  be 
voided.  Such  influence  is  poisonous  to  the  very  life  of  free  institutions. 
It  should  be  checked  with  stern  and  prompt  resentment  by  voiding  and 
annulling  any  election  where  such  interference  lias  occurred,  and  the 
influence  is  general,  although  imi)ossibIe  to  estimate  it. 

After  full  and  patient  investigation  of  this  case,  your  committee  con- 
clude that  no  full,  fair,  or  free  election  was  held  in  the  first  Congres- 
sional district  of  South  Carolina  in  November,  1876;  and  therefore  re- 
port the  following  resolution  and  recommend  its  adoption: 

Mesolced,  That  there  was  no  free,  fair,  ami  peaceable  election  in  the 
first  Congressional  district  of  South  Carolina  in  November,  1876,  and 
that  neither  Joseph  H.  Rainey  nor  John  S.  Richardson  is  entitled  to  the 
seat  from  SQid  district  in  the  Forty-fifth  Congress  by  virtue  of  said  elec- 
tion, and  that  said  seat  is  hereby  declared  vacant. 


RICHARDSON    VS.    RAINEY.  273 

Mr.  HiscocK  submitted  the  following  as  the 

VIEWS    OF    THE    MINORITY. 

A  minority  of  the  House  Committee  on  Elections  beg  leave  to  submit  the 

following  report: 

We  understand  the  majority  of  your  committee  to  recommend  Mr. 
Rainey's  election  to  this  House  be  declared  null  and  void,  and  his  seat 
vacant,  upon  two  grounds: 

First.  The  colored  electors  of  his  district  were  deprived  of  the  free 
exercise  of  the  elective  franchise  by  fear  of  violence  to  their  persons 
or  property,  or  social  ostracism  by  people  of  color,  and  to  an  extent  to 
render  it  doubtful,  except  therefor,  if  he,  Mr.  Rainey,  would  have  been 
elected;  and, 

Second.  The  presence  of  United  States  troops  in  the  Congressional 
district  upon  and  immediately  previous  to  election  day,  coerced  and 
unlawfully  influenced  the  colored  electors  to  vote  for  Mr.  Rainey  to  an 
extent  to  render  it  doubtful  if  he,  Mr.  Rainey,  would  have  been  elected 
except  therefor. 

The  majority  report  indulges  extensively  in  the  history  of  the  State 
of  South  Carolina  for  the  years  intermediate  the  close  of  the  war  and 
the  election,  or  the  opening  of  the  canvass  preceding  the  same. 

The  record  submitted  in  this  case  fiiils  to  furnish  the  evidence  of  the 
facts  alleged,  and,  in  our  judgment,  the  wailings  over  the  real  or  fan- 
cied past  wrongs  of  the  State  are  as  much  out  of  j)lace  in  the  report  as  a 
discussion  of  the  causes  of  the  war,  or  any  of  its  results,  would  be. 

Our  examination  should  be  limited  to  the  issues  involved,  and  we  con- 
fess to  disappointment  it  should  be  deemed  proper  in  this  case  to  make 
use  of  the  stock  in  trade  of  the  stump-speakers  during  the  last  ten  years 
to  inflame  the  minds  of  the  majority  up  to  the  point  of  dismissing,  un- 
justly, as  we  believe,  a  colored  Rej^resentative  from  South  Carolina  from 
this  floor. 

And  it  seems  to  us  the  inflammatory  appeal  is  a  confession  of  the 
weakness  both  of  facts  and  logic  upon  which  to  base  the  action  recom- 
mended to  the  House. 

We  will  first  examine  the  proposition  of  intimidation  of  colored  elect- 
ors by  the  colored  people  and  social  ostracism  among  themselves  on 
account  of  difference  in  political  \iews.  And  we  will  at  the  outset  call 
attention  to  the  fact  that  there  is  no  law  ii*  this  or  any  other  country 
enjoying  a  popular  government  and  the  elective  franchise  making  it  a 
crime  for  those  of  adverse  views  to  refuse  to  associate  together.  On 
the  contrary,  the  social  relations  in  political  organizations  are  cultivated 
as  properly  strengthening  them. 

It  is  a  notorious  fact  in  this  country.  Presidential  elections  are  heated ; 
the  passions  of  the  people,  male  and  female,  aroused ;  angry  discus- 
sions are  of  the  most  frequent  occurrence,  even  between  members  of 
the  same  family  and  of  the  same  church.  The  press  appeals  to  the 
prejudices;  monster  public  meetings  are  held  by  the  parties  respect- 
ively;  night  as  well  as  day  is  given  to  political  discussion;  mottoes  and 
songs,  demagogues  and  statesmen  vie  with  each  other  often  in  misstate- 
ments of  fact  or  ridicule.  The  business  of  the  people  is  in  part  sus- 
pended. Men  pour  out  their  money  freely  for  the  expenses  of  a  cam- 
paign, to  the  end  it  may  be  conducted  upon  a  plan  to  create  excitement. 

We  have  stated  the  facts  in  regard  to  a  Presidential  campaign  in  the 
H.  Mis.  58 18 


274  DIGEST    OF    ELECTION    CASES. 

most  temperate  community  in  the  United  States ;  and  upon  election 
day  scarce  a  poll  but  will  have  witnessed  heated  political  discussions 
between  personal  friends ;  and  we  confidently  appeal  to  the  record  in 
this  case  nothing:  occurred  among  the  colored  people  in  Mr.  Eainey's 
Congressional  district  more  violent,  tliere  were  no  more  extreme  disturb- 
ances of  the  social  relations  on  account  of  ^political  differences  among 
them,  than  we  have  described,  notwithstanding  so  much  to  which  we 
shall  refer  calculated  to  i^rovoke  extreme  excitement. 

We  now  invite  attention  to  the  State  of  South  Carolina. 

General  Hampton  was  nominated  for  governor  of  that  State  by  the 
Democratic  party  about  August  15,  1S7G. 

We  will  grant,  if  you  please — and  it  is  doubtless  true — his  supporters- 
believed  all  that  has  been  stated  of  misrule  in  the  State. 

It  was  the  determination  of  his  part}'  to  elect  him;  believing  in  the 
misrule,  as  they  did,  that  they  were  subjugated  to  the  colored  race  and 
white  adventurers,  they  were  determined  to  regain  the  government  of  the 
State.  Paint  as  vivi<lly  as  you  may  their  real  or  fancied  wrongs,  and 
the  same  language  will  measure  tfieir  excitement,  their  anger,  and  their 
intolerance. 

Previous  to  the  nomination  of  General  Hampton  "rifle-clubs"  and 
"saber-clubs"  had  been  formed. 

We  shall,  further  on,  insert  brief  extracts  from  the  evidence  establish- 
ing the  fact;  and  we  charge  the  record  is  replete  with  it;  and  we  charge 
there  is  no  conflict  of  evidence  upon  the  point. 

The  nomination  of  General  Hampton  was  followed  by  public  meet- 
ings, addressed  by  him  usually,  and  in  the  first  Congressional  district 
by  the  contestant  also.  At  these  public  meetings  appeared  bands  of 
armed  men,  armed  with  pistols  and  sabers  or  guns,  mounted  on  horses. 
It  was  not  an  infrequent  occurrence.  Hundreds  thus  armed  and 
mounted  would  be  in  line — on  one  occasion  as  many  as  1,500  men.  They 
charged  through  the  streets;  they  were  sometimes  attended  with  ar- 
tillery, which  was  discharged.  When  Republican  meetings  were  held^ 
bands  of  armed  men,  supporters  of  Hampton,  attended  them,  and  de- 
manded for  their  speakers  to  address  the  meetings.  But  we  can  scarcely 
describe  the  condition  of  affairs  more  briefly  or  graphically  than  is  done 
by  the  evidence. 

Testimony  of  James  D.  Blanding  (page  29) : 

Q.  How  long  before  the  election  was  the  rifle-club  formed  ? — ^A.  Loug  before  the 
campaign  opened. 

Q.  Is  that  the  circular  you  issued! 

(Circular  produced  and  offered  in  evidence ;  no  objection.) 

A.  It  was,  and  was  widely  distributed.  It  was  the  instructions  of  the  State  execu- 
tive Democratic  committee. 

Page  29 :  " 

Q.  How  many  rifle-clubs  were  formed  inthecounty  of  Sumter  T — A.  I  heard  of  two — 
one  saber  and  one  rifle  club  in  Sumter. 

Page  28: 

Q.  Did  you  notj  on  Hampton's  day,  see  a  large  number  of  horsemen? — A.  I  did- 
They  were  Democrats. 

Q.  Did  those  parties  have  side-arms? — A.  Yes;  I  saw  some  men  with  pistols. 

Q.  What  was  the  object,  on  Hampton's  day,  of  having  those  men  assembled? — A.^  1 
suppose  to  show  the  numbers  of  the  Democratic  party. 

Q.  Were  they  not  for  the  purpose  of  overawing  the  Republicans? — A.  I  cannot  say 
so ;  I  saw  both  parties  meet. 

A.  J.  Moses  (page  32) : 

Cross-examined  by  Mr.  D.  D.  McCall : 

Q.  What  was  the  object  of  the  formation  of  the  rifle-clubsand  saber-elubsf — A.  To. 
protect  the  members  from  the  invasion  of  an  enemy. 


RICHARDSON    VS     RAINEY.  275 

Q.  What  enemy  did  you  hear  off — A.  None. 

Page  33 :  '  , 

Q.  Was  there  apprehension  in  the  community  of  violence? — A.  I  know  of  none. 

W.  A.  Cooper  (page  39) : 

Q.  Did  you  helong  to  the  rifle-club  at  Mayesville  t — A.  I  did  until  Chamberlain's 
proclamation. 

Q.  What  waa  it  formed  for  ? — A.  For  home  protection. 

Q.  If  there  was  general  peace,  why  raise  a  rifie-chib  t — A.  We  wanted  to  be  prepared 
for  the  worst,  and  we  did  not  know  what  was  coming. 

Q.  How  often  did  it  meet  f — A.  It  only  met  twice  to  my  knowledge. 

C^.  Had  they  officers,  and  how  were  tliey  known  T — A.  We  had  a  captain  and  an 
orderly  sergeant. 

Q.  What  sort  of  gnu  did  you  have? — A.  A  double-barreled  shot-gun. 

Q.  How  many  of  the  company  had  ritles? — A.  A  good  many  got  rifles  just  before 
Hampton's  election,  and  some  got  guns  afterward. 

JameB  A.  Mills  (page ) : 

Redirect : 

Q.  You  are  asked  as  to  the  arms  owned  by  the  rjfle-clubs  referred  to;  now,  was  said 
arms  just  the  shot-guns  or  other  arms  which  the  farmers  had  for  years  t — A.  They  were. 

Q.  What  was  the  purpose  of  the  organization  f — A.  Mutual  protection,  friendly  in- 
tercourse, and  to  aid  the  proper  authorities  in  preserving  peace  and  order. 

E.  H.  Dean  sworn  (page  377) : 

Q.  Wore  you  at  the  first  meeting  at  Timmousville? — A.  I  was. 

Q.  Please  state  what  you  saw  that  day. — A.  When  we  got  there  we  found  about 
1,200  or  1,500  Democrats,  armed  and  dressed  in  red  shirts,  with  rifles,  double-barrel 
shot-guns,  and  pistols.  The  Democrats  were  anxious  to  have  a  joint  discussion,  and 
asked  the  county  chairman  would  they  agree  to  it.  He  replied  that  he  could  not  tell 
them  until  the  rest  of  the  speakers  would  arrive.  When  B.  F.  Whittmore,  with  the 
restot  the  speakers,  came.  Colonel  Law,  the  Democraticcounty  chairman,  with  several 
others,  consulted  with  Mr.  Whittemore  and  others  of  our  speakers  as  to  a  joint  discus- 
sion, and  he  told  him  that  he  would  not  have  a  joint  discussion  under  any  circum- 
stances with  them,  for  they  had  defied  him  to  come  there  to  speak,  and  they  would 
bring  on  a  row.  The  Democrat-s  said  that  if  they  spoke  at  the  stand  they  would  have 
a  joint  discussion,  aud  we  moved  to  another  place.  They  sent  the  co  mittee  twice 
again  for  a  joint  discuasiou,  which  was  put  to  the  meeting  and  refused.  Afterward 
they  came  up  before  we  concluded  the  speaking  and  sourrounded  us  on  all  sides. 

Samuel  McDuffie  (colored)  sworn  (page  420): 

Question.  Where  do  you  live,  and  how  long  have  you  lived  heref — Answer.  Been 
living  in  Sumter  since  shortly  after  the  emancipation. 

Q.  You  are  familiar,  I  suppose,  with  the  character  of  the  last  campaign  ? — A.  I  am. 

Q.  Was  the  campaign  very  exciting  and  holly  contested  ? — A.  It  was. 

Q.  State  what  sort  of  a  campaign  wasit;  what  was  done  by  the  Democrat  es  during  the 
campaign.— A.  Persuaded  the  colored  people  to  come  over  and  vote  with  the  Democrats ; 
if  not,  that  they  would  be  discharged. 

Q.  Did  you  s<;e  anything  like  rifle-clubs  or  organizations? — A.  I  have. 

(Objected  to  as  leading.) 

Q.  Where  did  you  see  thoni  ? — A.  In  Sumter;  they  were  drilling  with  guns;  had 
seven-shooters. 

Q.  When  was  it  you  saw  the  rifle-clilbs  drilling  with  guns? — A.  Before  the  election 
and  after  the  election  ;  saw  them  drilling  night  before  last. 

IlarrivSou  Weatherspoon  sworn  (page  433): 

Q.  Have  you  ever  seen  the  rifle-club  at  Bishopville,  or  how  did  yon  know  there  was 
one? — A.  I  been  up  there  ;  saw  some  of  their  guns  and  accouterments,  and  was  told 
by  Tyler  Dixon,  a  colored  Democrat,  that  one  was  in  existence  there. 

Q.  Will  you  say  on  your  oath  that  the  nfle-club  at  Sumter  ever  drilled  after  Gov- 
ernor Chamberlain's  proclamation  disbanding  the  rifle-clubs,  nntil  the  election  was 
over  f— A.  I  cannot  say  on  my  oath  that  they  drilled  after  the  proclamation  was  issued, 
but  I  can  say  this  on  my  oath,  that  they  were  marching  through  the  streets  with  their 
guns  after  night  after  the  proclamation  was  issued. 

Q.  How  is  it  that  you  have  said,  in  your  answer  to  the  examination-in-chief,  "that 
they  drille<l  once  or  twice  every  week  ?" — A.  I  said  that  the  rifle-club,  before  the  elec- 
tion, did  tlrill  once  or  twice  a  week  at  the  time  1  found  it  out. 

Q.  Were  there  any  Democratic  rifle-clubs  in  the  county? — A.  They  were,  and  they 
drilled  once  or  twice  every  week.     • 


216  DIGEST    OF    ELECTION    CASES. 

Q.  About  what  time  in  the  campaign  did  these  clubs  commence  drilling? — A.  They 
commenced  drilling  four  or  five  weeks  before  the  election. 

W.  I.  Andrews,  testifying  of  the  Hamptou  meeting  held  October  7, 
1876,  says  (page  478) : 

Q.  Please  state  any  instances  of  violence  done  to  Republicans  by  Democratic  organi- 
zations.— A.  On  Hampton's  demonstration  a  large  crowd  of  mounted  men— between 
500  and  1,000 — some  with  pistols,  and  also  an  artillery  company  from  Columbia,  was 
here,  which  paraded  through  the  streets,  the  artillery  firing  in  the  heart  of  the  town 
at  night,  creating  a  great  fear  among  the  Republicans,  both  in  the  country  and  in 
town  ;  seeing  such  crowds  of  mounted  men,  and  the  way  they  went  on,  a  great  num- 
ber of  the  Republican  voters  got  scared.  To  keep  them  from  being  frightened,  our 
Republican  executive  committee  made  and  gave  instructions  throughout  the  county 
that  every  Republican  voter  appear  in  the  town  of  Santee  on  the  next  Saturday,  for 
the  purpose  of  listening  to  speeches  from  speakers  from  abroad,  and  a  large  number 
came  to  town  mounted,  as  instructed.  On  the  same  day  a  large  number  of  Demo- 
crats came  to  town  mounted,  rode  through  our  ranks  two  or  three  times,  and  the  Re- 
publicans got  thoroughly  frightened,  saying  that  there  was  going  to  be  a  row.  Also 
our  meeting  was  disturbed  once  or  twice  in  the  court-house  by  the  Democrats,  whlt« 
and  colored.  At  Bishopville,  also,  we  went  up  there  to  make  a  speech;  about  one 
hundred  mounted  Democrats  were^iu  the  town ;  cursed  our  men  as  we  i)a8sed  through, 
and  we  were  informed  that  they  intended  to  break  up  our  meeting  if  we  spoke  there 
that  day.     We  went  about  half  a  mile  from  the  village  and  had  our  meeting  there. 

H.  M.  K.  Dargan  sworn  (page  353): 

Question.  State  what  happened  on  that  day. — Answer.  On  leaving  Darlington,  about 
9  o'clock  a.  m.,  about  seven  miles  from  here  we  met  the  Timmonsville  rifle-club,  about 
1*20  strong,  with  red  shirts,  red  flannel  around  their  hats;  some  had  yellow  shirts,  also 
red  flannel  around  their  hats.  A  few  words  passed  between  Democrats  and  Republicans. 
Some  of  the  Democrats  said  that  we  would  meet  to-night  on  the  way  back,  and  we  git 
youthen.  We  then  went  on  to  Timmonsville.  About  an  hour  after  getting  there 
speaking  commenced ;  during  the  speaking  things  were  very  quiet.  After  the  speaking 
was  over  we  had  a  torchlight  procession — marched  around  the  town  ;  coming  out  of 
town  we  met  the  same  rifle-club  returning,  and  they  attempted  to  break  through  our 
procession,  and  they  said,  "  You  will  have  to  go  around,  as  we  are  not  going  to  give 
the  way."  We  thought  best  to  go  around  them ;  after  we  gone  around  them  they  went 
on  to  Timmonsville. 

Q.  Where  were  yon  on  the  day  of  election  ? — A.  At  Timmonsville. 

Q.  Do  you  know  anything  of  colored  men  being  shut  up  the  night  previous  to  the 
election  in  that  town? 

(Objection  to  question  as  soliciting  answer.) 

A.  I  do.  I  got  there  on  the  morning  of  the  day  of  election  about  5  o?clock ;  working 
up  town,  I  heard  a  crowd  of  men  in  a  hall.  I  asked  some  one  outside  what  they  were 
doing  in  there  ;  they  stated  that  the  Democrats  had  shut  these  colored  men  up  in  there 
the  night  previous  to  keep  them  from  deceiving  the  Democrats  in  voting  the  Democratic 
ticket.  I  staid  there  until  it  was  time  for  voting,  and  I  saw  about  twenty-five  or  thirty 
colored  men  coming  out,  and  a  white  man  had  each  of  them  bj'  the  arm.  I  followed 
them  to  the  place  of  voting;  after  each  white  man  voted,  the  white  man  would  hand 
a  ticket  to  the  colored  man  he  had  by  the  arm  and  make  him  vote  it,  and  both  would 
come  out  together  after  they  had  so  voted,  and  then  would  turn  the  colored  men  loose. 
About  six  white  policemen  were  at  that  poll,  and  prevented  Republicans  from  voting 
until  that  crowd  got  through  voting.  During  the  day  white  Democrats  came  to  the  polls 
dressed  in  diflferent  costumes,  representing  different  rifle-clubs,  some  with  the  pistols 
strapped  outside  of  their  clothes  ;  not  more  than  twenty  or  twenty-five  white  men  were 
there  that  day,  except  dressed  as  above.  Pistols  were  drawn  once  on  a  colore<l  man  on 
account  of  his  voting  the  Republican  ticket ;  also  I  was  threatened  for  discharging  my 
duties  as  a  deputy  United  States  marshal,  and  they  went  on  so  bad  that  I  had  to  call 
on  the  United  States  troops  there.  After  they  drew  a  pistol  on  that  man,  I  went  up  to 
him,  trying  to  quiet  him,  and  they  made  threats  to  me  that  if  I  did  try  to  quiet  this 
man  they  cursed  me  and  said  that  they  would  shoot  hell  out  of  me  before  I  would 
get  away  from  there.  I  told  them  that  I  was  a  United  States  deputy  marshal,  and 
in  the  discharge  of  my  duties,  and  they  told  me  they  did  not  give  a  damn  for  my  mar- 
shalship.  While  writing  a  note  to  the  commanding  officer  of  the  soldiers  these  parties 
cot  away.  While  counting  the  votes,  the  house  where  the  j^oUswerein  was  crowded 
by  both  parties.  I  heard  a  Democrat  say  that  if  the  Republicans  ontcounted  them  at 
that  poll  that  they  raise  hell  with  them  and  take  the  box ;  also  a  speech  was  made 
that  day,  right  at  the  poll,  to  the  effect  that  if  the  Republicans  did  not  vote  with  them 
so  that  they  could  get  rid  of  the  damn  rascals,  that  they  had  the  land  and  the  money, 
and  they  ■would  neither  rent  them  land  nor  hire  them. 


RICHARDSON   VS.    RAINEY.  277 

Josepli  Douglas  sworn  (page  366) : 

Q.  At  which  poll  were  you  at  during  the  election  f — A.  At  poll  No.  1.  In  the  moru- 
ning,  at  gray  daylight,  it  was  raining  pretty  rapid  ;  I  got  up  and  dressed  myself;  went 
up  to  see  about  tickets ;  got  tickets ;  came  on  back.  I  met  about  150  Democrats  there. 
I  waited  for  a  considerable  time  until  most  of  them  voted :  spoke  to  Col.  J.  A.  Law,  the 
Democratic  chairman,  and  told  him  that  I  had  some  friends  to  vote,  and  he  said,  "You 
can't  come  in,  Douglas."  I  replied,  "Colonel,  your  men  have  voted,  let  them  get 
out  of  the  way."  He  replied,  "That  is  my  business."  I  said,  "Colonel,  you  treat 
me  with  contempt  this  morning;  the  men  done  voted  are  to  get  out  of  the  way." 
He  told  his  men  to  keep  their  places.  I  then  saw  him  take  a  colored  man,  Peter  Mc- 
Keever,  by  the  hand,  lead  him  up  to  the  poll,  put  a  ticket  into  his  hand,  and  voted  the 
Democratic  ticket.  He  then  took  another  one,  Joe  Dicks,  by  the  hand  and  do  the  same 
thing.  Stepped  out  again ;  got  Jack  King  by  the  hand  and  gave  him  the  same  ticket 
to  vote  ;  and  then  I  said,  "Colonel,  I  don't  like  this;  you  give  us  no  showing."  To 
which  he  replied,  "  I  don't  calculate  to  give  you  a  showing."  I  asked  him  why.  His 
reply  was,  "We  «lon't  intend  to  live  under  radical  rule  anymore."  I  said,  "Colonel, 
we  beat  you  anyhow."  He  replied,  "  If  you  do  you  are  sorry  for  it.  If  you  do  beat  us 
by  the  ballots  we  beat  you  by  the  bullets.  I  know  where  you  got  your  jjuns  stacked." 
I  said,  "  We  don't  vote  with  gnns  ;  we  vote  with  ballois."  The  men  I  alluded  to  were 
all  colored  men  Colonel  Law  took  by  the  hand. 

Then  some  one  called  Mr.  Whittemore,  who  was  a  United  States  deputy  marshal. 
Mr.  Whitt«more  said  to  him,  "Colonel  Law,  after  your  men  voted  you  are  to  give 
way  to  others."  He  said  to  Mr.  Whittemore,  "  This  is  none  of  your  damned  business" ; 
but  Mr.  Whittemore  said,  "You  must  give  way.  I  am  deputy  marshal,  and  I  must  see 
right  and  justice  go  on."  Mr.  Law  then  said,  "I  regard  you  no  more  than  any  other 
citizen."  Mr.  Whittemore  then  said,  "  I  don't  want  you  to  regard  me  any  more  than 
any  other  citizen,  but  1  want  the  right  to  be  done,"  he  rt-plied.  Colonel  Law  said, 
•'  Your  men  have  their  arms  stacked,  and  I  know  all  about  it."  Mr.  Whittemore  said, 
"What  arms  have  they?"  He  said,  "They  have  guns  concealed  in  jail."  Mr.  Whit- 
temore called  me  and  asked  me  about  it.  I  told  him  a  few  were  there,  and  I  had  them 
lacked  up,  and  would  not  let  any  one  have  them  until  the  election  was  over,  but  that 
they  were  not  a  circumstance  to  the  guns  the  Democrats  had  in  the  drug  store,  where 
they  had  150  or  more.  Then  Colonel  Law  gave  orders  to  his  men  to  give  way,  which 
they  did.  Colonel  Edwards  then  took  old  man  Gaston  by  the  hand  and  made  him 
vote  the  Democratic  ticket,  which  he  did,  crying.  After  that  Colonel  Law  said  to  Mr. 
Whittemore  in  my  presence  that  he  would  not  disturb  the  election  any  more.  The 
soldiers  camped  on  the  hill  by  Swift  Creek,  and  the  Democrats  reported  to  them  that 
we  had  guns  at  the  jail,  and  they  put  a  guard  there  about  the  time  the  polls  closed, 
and  kept  them  there  until  10  o'clock  next  day.  We  had  no  other  disturbances  at 
that  poll. 

J.  A.  Smith  sworn  (testifying  of  the  Timmonsville  meeting) : 

Q.  Please  tell  us  what  occurred  at  that  meeting. — A.  Seeing  the  Democrats  bearing 
arms,  school-boys  from  twelve  to  fifteen  years  old,  seeing  those  men  in  arms,  I,  as  the 
county  chairman,  felt  that  it  would  not  be  safe  for  a  joint  discussion.  I  consulted 
with  the  Democratic  county  chairman  and  the  other  leading  Republicans.  The  county 
chairman,  on  the  part  of  the  Democrats,  promised  that  he  would  guarantee  that  there 
would  not  be  any  collision,  but  the  leading  Republicans,  with  me  as  chairman,  with 
the  threatening  outlook,  were  not  willing  to  risk  it,  and  withdrew  the  Republicans  a 
half  of  a  mile  from  the  stand  that  was  built  jointly,  and  commenced  speaking.  We 
were  not  interrupted,  only  by  a  Democratic  committee  of  five,  to  insist  on  a  joint  dis- 
cussion. We  refiised  a  second  time,  seeing  that  the  violence  was  stiU  existing,  aud 
we  went  on.  Towards  the  end  of  the  speaking,  the  second  committee  of  five  came  to 
ask  us  if  they  could  come  to  listen  to  the  speeches,  and  were  allowed  to  do  so.  They 
came,  between  three  and  four  hundred,  mounted  and  footmen,  and  armed  with  sixteen- 
ahooter  double-barrel  guns.  One  Bill  Oliver  had  a  wallet  of  pistols.  They  came  up 
and  surrounded  the  wagon  on  which  we  were  speaking.  The  Republicans  then  ad- 
journed and  left. 

Q.  The  William  Oliver  that  you  speak  of,  don't  you  know  that  he  has  for  the  last 
four  yeans  resisted  and  defied  the  process  of  the  law  in  this  county? — A.  He  has. 

Q.  On  the  occasion  of  this  meeting  at  Timmonsville,  did  you  not  consider  a  col- 
lision or  bloodshed  as  imminent  ? — A.  It  was  imminent.  Colored  people  were  fright- 
ened, and  so  much  so  during  the  first  speech  that  the  colored  people  commenced  to  run 
as  soon  as  they  learned  that  the  Democrats  were  coming  down.  There  was  some  noise. 
I  think  a  horse  broke  loose,  and  they  commenced  to  run.     I  begged  them  to  be  easy. 

Dr.  John  Lunney  sworn  (pages  374,  377) : 

Question.  Did  you  attend  the  second  meeting  at  Timmonsville? — Answer.  I  did. 
Q.  Do  you  remember,  as  you  were  going  to  Timmonsville  that  day,  seeing  the  rifle- 


278  DIGEST  OF  ELECTION  CASES. 

club  comiug  from  that  point  ? — A.  I  do.  We  met  them  on  the  road,  and  thoy  cnrsed 
and  abused  us  as  we  passed. 

Q.  How  were  they  dressed  and  armed  ? — A.  Some  had  red  shirts,  others  pieces  of  red 
flannel  on  their  hats ;  some  had  red  flannel  on  their  boots,  and  had  pistols  strapped 
around  them  on  the  outside. 

Q.  Do  you  remember  the  comiug  out  of  Timmonsville  that  night  by  the  Republi- 
cans?— A.  I  do.  We  had  to  halt  a  long  time  in  order  to  avoid  a  collision  with  the 
rifle-clubs  that  were  returning  to  Timmonsville. 

Q.  You  are  an  intelligent  man,  and  I  will  ask  you  if  the  Republicans  of  this  county, 
from  the  demonstrations  and  conduct  of  the  Democrats,  were  not  in  constant  appre- 
hension of  collision  and  bloodshed  during  the  campaign? — A.  We  were;  and  it  was 
only  prevented  by  the  greatest  forbearance  on  the  part  of  the  Rejjublicans,  and  it 
was  averted. 

Q.  Contestant's  attorney  has  introduced  in  the  cross-examination  (in  evidence,  Ex- 
laibit  A,  page  71)  a  pledge  universally  adojited  in  this  county  by  the  land-owners. 
What  effect  did  pledges  of  this  sort  and  the  violent  demonstration  of  the  Democrats 
have  upon  the  colored  voters  ? — A.  It  compelled  a  great  many  to  vote  the  Democratic 
ticket  who  otherwise  would  not  have  done  so. 

Q.  What  effect  did  the  introduction  of  troops  have  upon  the  colored  voters  of  this 
county? — A.  It  had  no  effect,  except  to  give  them  assurances  of  protection  to  vote  as 
they  pleased.  The  majority  did  not  know  that  the  troops  were  here,  and  thoy  were 
not  seen  at  or  near  the  polls  dui-iug  the  election. 

C.  E.  Howe  sworn  (page  401) : 

Q.  Do  you  know  of  any  acts  of  violence  or  demonstrations  of  violence  on  the  part  of 
Democrats  during  the  campaign?— A.  I  do.  I  heard  of  the  demonstrations  made  at 
the  first  Timmonsville  meeting  by  the  Democrats;  was  at  the  second  meeting  at  Tim- 
monsville, and  saw  violent  demonstrations.  Saw  the  Democrats  at  Darlington  turn 
out  with  arms,  dressed  in  red  shirts  ;  this  was  common  during  the  campaign.  I  knew 
more  of  Marion  County  than  of  Darlington  County;  they  had  rifle-clubs  all  over  the 
county.  The  sheriff  of  the  county  was  a  captain  of  a  saber-club.  The  club  in  the 
town  of  Marion  practiced  in  the  Masonic  Hall,  drilling  every  Tuesday  night,  up  to 
the  election.  On  Hampton's  day  they  turned  out  with  red  shirts  and  pistols  buckled 
around  them,  which  was  after  the  proclamations.  Duriug  the  campaign  a  colored 
man  was  killed  at  Simon  Crawford's,  and  he  had  to  leave  the  county,  and  is  in  Colum- 
bia now.  In  Marion  County  the  colored  people  were  greatly  alarmed  on  account  of 
the  demonstrations  made  by  the  Democrats,  and  many  colored  people  staid  away 
from  the  polls  on  that  account  and  for  fear  of  losing  their  places. 

D.  D.  McCall  sworn  (pages  403,  404,  405): 

Q.  What  effect  had  the  presence  of  troops  upon  the  voters  of  the  county  ? — A.  None 
whatever,  in  my  opinion,  towards  changing  the  vote  of  a  single  white  or  colored  voter. 
There  was  one  company  of  about  fifty-six  men  in  the  county,  and  stationed  on  day  of 
election  at  Bennettsville,  Brownsville,  and  ><ed  Bluff  polls;  and  I  have  heard  promi- 
nent Democrats  as  well  as  Republicans  say  they  did  not  affect  the  voting  in  any  way. 
On  the  day  the  troops  came  into  the  county  the  Republicans  were  holding  at  Bennetts- 
ville the  only  county  mass  meeting  held  by  them  after  the  opening  of  the  campaign. 
A  large  number  of  mounted  Democrats  appeared  in  town  on  horseback,  it  was  said 
to  divide  time,  and  had  one  or  more  Democratic  speakers  from  abroad.  When  the 
Democrats  iound  the  troops  were  comiug  they  marched  in  procession  on  horseback, 
four  or  tive  hundred  strong,  waving  flags  and  hats,  out  about  a  mile,  to  meet  the  troops, 
and  marched  with  them  into  town,  cheering,  &c.,  and  in  no  way  attempted  to  divide 
time  or  interrupt  the  Republican  meeting,  although  they  had,  before  it  was  generally 
known  that  troops  would  be  on  hand,  assembled  in  large  numbers  from  all  parts 
of  the  county,  coming  into  the  town  in  companies,  with  flags,  officers,  &c. 

Q.  How  was  the  campaign  conducted? — A.  With  unusual  excitement  and  bitterness, 
and  with  demonstrations  entirely  new  in  Marlborough  County.  I  refer  to  mounted 
processions  of  Democrats  On  the  8th  of  September  I  saw  a  large  number  of  Dera* 
crats  from  Marlborough  and  Marion  County  pass  ray  spring  place  on  horseback  and  in 
buggies,  arme«l  mostly  with  guns,  goiug  to  meet  Mr.  Whitiemore,  a  Republican  from 
Darlington  County,  who  it  was  reported  had  come  over  into  Marlborough  ;  this  report 
proved  unfounded.  On  Hampton's  day,  in  Bennettsville,  a  large  mounted  procession, 
composed,  saj,  of  one  thousand,  lode,  cheering  and  hallooing,  at  a  gallop  through  the 
town,  and  on  the  day  of  the  Republican  mass-meeting,  referred  to  before,  the  l3emo- 
crats  were  out  in  procession,  on  horseback,  in  .strong  force,  and  the  excitement  wjts  in- 
tense. Any  little  diftieulty  on  this  day  between  a  white  and  colored  man  might  have 
led  to  the  sacrifice  of  a  great  majiy  lives. 

I  heard  one  of  the  delegates  to  the  Democratic  State  convention  which  nominated 
Hampton  say,  after  he  came  home,  that  "  they,  the  Democrats,  were  determined  to 


RICHARDSON    VS.    RAIXEV.  279 

have  heavL'u  or  hell,  one."'  I  heard  Colonel  Yeoromans,  one  of  the  Democratic  speak- 
ers on  Hampton's  day,  say,  in  the  presence  of  Hampton,  in  his  speech,  that  they  in- 
tended to  carry  the  election ;  and,  if  they  did  not,  that  there  were  in  the  State  twice 
ten  thousand  men  who  were  prepared  to  know  the  reason  why.  Col.  J.  S.  Richardson, 
in  his  speech  on  this  occasion,  in  speaking  more  particularly  to  the  colored  people 
present,  stated  that  nnder  Republican  rule  in  this  State  no  white  man  had  ever  been 
convicted  of  murder  for  killing  one  of  their  color,  and  asked  them  for  this  reason  to 
8upi>ort  the  Democrats,  saying  they  could  and  would  i>rotect  them  from  such  things. 
In  speaking  of  rille-clubs,  I  would  like  to  state  one  matter  within  my  knowledge. 
At  the  May  or  January  term  of  court  in  Marlborough,  1876,  a  white  man  by  the  name 
of  Ross  was  convicted  in  court  of  general  sessions  for  a  misdemeanor,  but  run  away 
before  sentence  ;  the  judge  sealed  the  sentence  and  a  bench-warrant  was  issued  for 
defendant  and  placed  in  the  hands  of  the  sheriff.  During  the  campaign  Ross  made 
his  appearance  in  the  county  and  ro<le  in  the  Hampton  procession  in  Bennettsville,  and 
the  sheriff  received  a  note  from  the  county  Democratic  chairman,  advising  him  not  to 
attempt  the  arrest  on  that  daj',  owing  to  excitement,  &c.  Shortly  afterward,  say  » 
week  or  more,  one  Powers  came  to  me,  solicitorof  the  circuit,  saying  that  Ross  belonged 
to  the  same  club  with  him,  and  that  they  were  determined  to  protect  him  and  keep 
him  from  being  arrested  or  going  to  jail  on  thesentenceof  the  court,  and  he  has  never 
been  arrested  yet.  I  brought  this  to  the  attention  of  Judge  Townsend,  the  presiding 
judge  of  the  circuit. 

Larry  Aikeu,  sworn  (testifyiug  as  to  Darliugtou,  page  331) : 

Q.  Was  the  campaign,  on  thejiart  ofthe  Democrats  in  this  county,  conducted  peace- 
ably, or  with  a  great  slunv  of  violence  ? — A.  They  expected  to  carry  the  election  with 
violence,  and  did  appear  that  they  intended  to  carry  the  election  by  storm.  The  very 
day  a  colored  man  was  shot,  on  the  day  General  Hampton  spoke,  and  I,  as  town  mar- 
shal, arrested  the  nian  and  put  him  in  the  guard-house  and  just  afterthat  up  came  the 
whole  Ham))ton  cavalry  and  run  another  colored  man  in  the  gate  with  pistols  pointed 
at  him,  and  the  man  was  taken  out  of  the  guard-house  and  released,  his  fine  being 
paid.  At  Timmonsville  I  attended  both  Republican  meetings.  At  the  first  one  I 
saw  about  oOU  armed  Democrats  with  ritles  and  bayonets,  and  we  moved  from  the 
first  place  we  occupied  (m  account  <»f  threats.  A  joint  platform  was  built  by  Demo- 
crats and  Republicans,  and  on  the  day  the  Republicans  held  their  meeting  they  with- 
drew from  the  jdatform  on  account  of  threats.  We  went  awayahalf  a  mile  and  held 
our  meeting.  Mr.  Whittenu»re  was  speaking.  Two  Democrats  cocked  their  guns  to 
shoot  him,  and  they  did  not  shoot  him,  because  my  men  were  there  and  cocked  their 
guns  at  them. 

Q.  After  they  had  returned  to  Timmonsville,  and  found  the  Republicans  there,  did 
they  not  make  threats  and  demonstrations  of  violence  there? — A.  They  did. 

Q.  On  Hampton's  day,  in  the  town  of  Darlington,  about  how  many  armed  white 
mounted  men  were  in  the  procession  ? — A.  About  four  hundred  armed  men  on  horse- 
back. 

Q.  Do  yon  know  anything  as  to  whether  the  rifle-club  yon  mentioned  of  being  in 
the  town  had  ritles  or  not  ? — A.  I  know  there  were  rifles  here,  brought  in  boxes  from 
the  depot  by  the  Democrats  and  stored  in  difi'erent  houses. 

Q.  Did  you  hear  any  threats  duiing  the  campaign  from  land-owners  as  to  non- 
employment,  «S:c.,  to  colored  people  for  voting  the  Republican  ticket t — A.  I  did;  a 
heap  of  tlieuj.     I,  for  myself,  was  turned  out  ft»r  voting  the  Republican  ticket. 

Q.  Did  these  threats  of  turning  off  those  who  voted  the  Republican  ticket,  and  the 
violence  exhibite<l  during  the  cjimpaign  by  the  rifle-clnb,  cause  many  Republicans  to 
vote  with  the  Democrats  against  their  wishes  T  v 

(Objected  to  as  leading,  and  as  calling  for  expression  of  opinion.) 

A.  It  did,  and  kept  many  others  froni  voting  ;  some  of  them  I  know  by  name. 

Cruss-examiuation  : 

Q.  Do  you  know  of  any  other  Democratic  rifle-club  except  Captain  Floyd's? — A.  I 
do;  all  ov<;r  the  county. 

Q.  How  do  you  know  ? — A.  As  a  deputy  sheriff,  I  saw  them  drilling  in  different  sec- 
tions of  the  county. 

Q.  Please  state  where. — A.  AtEbenezer.  at  Palmetto,  and  near  Black  Creek  church. 

Q.  Who  did  you  see  at  Ebenezer  ? — A.  I  don't  know. 

Q.  Who  at  Palmetto  ? — A.  Don't  know  any. 

Q.  Who  at  Black  Creek  ?— A.  Don't  know'any. 

Q.  How  do  you  know  they  are  Democrats  f — A.  Because  they  were  white. 

Q.  How  were  they  armed? — A.  With  guns. 

Q.  Can  you  say  that  the  colored  man  shot  l\v  the  white  man  on  Hampton's  day  »i 
Darlington  was  fired  upon  on  account  of  his  politics  ? — A.  I  cannot. 

Q.  Was  the  man  who  was  arrested  for  the  shooting  drunk  f — A.  No. 


280  DIGEST  OF  ELECTION  CASES. 

Q.  Was  the  authority  of  the  marshal  interfered  with  ? — A.  It  was.  This  uiau  was 
taken  from  him  by  the  Hampton  cavalry  and  earned  to  the  speaking. 

Q.  You  have  stated  in  your  direct  examination  that  this  man's  fine  was  paid  and  he 
was  released.  You  now  say  that  he  was  forcibly  taken  from  the  custody  of  the  mar- 
shal. Explain  the  matter. — A.  As  soon  as  the  Hampton  cavalry  found  out  this  man 
was  arrested  thej'  came  and  took  him  away,  and  Colonel  Law  had  him  put  back  in 
the  possession  of  the  town  council. 

Q.  You  have  said  that  500  armed  men,  Democrats,  were  at  Timmonsville.  How 
many  armed  Republicans  were  at  Timmonsville  ? — A.  About  two  or  three  hundred. 

Q.' On  the  day  of  election  did  you  see  any  of  the  rille-clubs,  at  or  near  the  poll, 
marching  through  the  town  ? 

(Objected  to,  not  being  in  reply.) 

A.  I  saw  50  or  60  marching  through  the  town  on  the  day  of  election,  dressed  in  red 
shirts,  with  a  red  flannel  around  their  hats,  about  four  or  five  o'clock  in  the  eveuing. 

Q.  On  the  day  before  the  election,  or  for  two  or  three  days  previously,  did  you  see 
any  red-shirted  procession  marching  about  ? 

(Objected  to,  as  not  being  in  reply.) 

A.  I  did  not  .see  any  mvself,  but  heard  of  them. 

LARRY  AIKEN. 

Alfred  Smith  sworn  (page  335) : 

Question.  Can  you  mention  some  demonstrations  and  incidents  that  would  indicate 
a  show  of  violence? — Answer.  At  Timmonsville,  at  the  first  meeting  of  the  campaign, 
there  were  about  four  or  five  hundred  Democrats  met  at  Timmonsville  for  a  joint  dis- 
cussion, having  heard  that  the  Republicans  intended  to  have  a  meeting  there  that  day. 
At  first  the  Republicans  of  Darlington  went  to  Timmonsville  and  fonud  that  a  stand 
was  erected  between  the  Democrats  and  Republicans.  After  waiting  there  for  a  little 
while  Republicans  concluded,  by  seeing  so  many  armed  men  come  into  Timmonsville, 
there  would  be  certainly  a  row  should  the  Republicans  attempt  to  have  a  joint  discus- 
sion. On  that  account  the  Republicans  withdrew  a  half  of  a  mile  and  held  their  meet- 
ing. About  12  o'clock  the  meetiug  was  called  to  order,  Jourdan  Lang,  chairman.  After 
several  speakers  had  spoken,  the  Democrats  sent  a  committee  of  five  to  ask  for  a  division 
of  the  time,  which  ofter  was  brought  before  the  people  aui^ voted  down.  The  commit- 
tee then  returned  to  the  Democratic  stand  and  another  one  was  sent  to  ask  whether 
the  Democrats  might  come  and  listen  to  the  speeches.  This  request  was  granted.  The 
committee  returned,  and  in  about  one-quarter  of  an  hour  about  four  or  five  hundred 
Democrats,  armed  with  rifles,  shot-guns,  and  pistols,  mounted  and  partly  on  foot, 
marched  up  to  where  we  had  our  meeting.  One  man  had  twelve  pistols.  After  the 
Democrats  got  near  our  stand  they  formed  a  semicircle.  A  good  many  commenced 
asking  questions,  interrupting  the  speaker.  At  that  time  B.  F.  Whittemore  got  upon 
the  stand,  and  he  was  insulted.  Good  many  asked  him,  "Hog,  where  is  that  forty-four 
hundred  dollars  that  you  grabbed  from  this  county  ?  "  Whittemore  did  not  reply,  and 
I  saw  Mr.  Hennegan  point  a  rifle  at  him,  and  Pawley  told  him  not  to  shoot  him.  '  Hen- 
uegan  replied  that  we  did  not  come  down  to  shoot.  I  stepped  oft'  a  little  piece,  and 
stood  near  the  man  who  had  the  twelve  pistols,  who  said,  "I've  lost  the  best  chance 
I  ever  had  to  kill  the  damned  hog  Whittemore."  About  that  time  the  chairman  an- 
nounced the  meeting  adjourned,  and  said  that  any  one  who  wished  to  stay  to  hear  Mr. 
Richardson  could  do  so.  I  was  about  tlie  last  to  leave  for  Darlington.  A  few  of  the 
Republicans  staid  at  the  stand,  but  the  greater  portion  of  the  Republicans  left,  owing 
to  the  fear  of  being  shot  down. 

Q.  The  Democrats  that  were  armed  with  shot-guns,  «fec.,  how  were  they  dressed? — 
A.  They  had  not  any  uniforms  that  time.  ^ 

This  meeting  was  September  23,  187G. 

Q.  Did  you  see  any  riding  by  men  in  uniform  during  the  campaign  ? — A.  I  seen  about 
2,100  mounted  men,  in  red  shirts,  with  pistals  iiround  them,  in  the  town  of  Darlington, 
on  Hampton's  day,  the  pistols  being  buckled  on  the  outside.  I  don't  mean  to  say  that 
all  were  uniformed  red,  but  had  some  kind  of  a  uniform.  I  was  at  the  stand  when 
General  Hampton  spoke.  While  Mr.  Richardson,  of  Sumt«r,  was  speakiug,  a  report 
came  to  the  stand  that  the  colored  people  and  the  rifle-clubs  were  fighting  down  town. 
I  saw  at  that  time  the  rifle-clubs  formed  a  circle  around  the  stand,  got  on  their  horses, 
and  many  of  them  got  euns  from  buggies;  came  to  town,  saying  that  we  are  ready 
for  anything;  among  the  men  coming  from  the  stand  were  Preacher  Hart.  When 
they  came  down  the  marshal  had  Sidney  Kelly,  a  white  Democrat,  put  in  the  guard- 
house for  shooting  Furman  Brown.  When  they  came,  a  company  of  cavalry  from  the 
stand,  rode  up  in  front  of  tlie  guard-house,  cocked  their  guns,  aud  demanded  the  pris- 
oner. The  prisoner  jiimped  on  a  horse  behind  one  of  the  men  and  weut  to  the  Hamp- 
ton stand.     On  the  day  of  election  I  was  at  Lydia,  and  nearly  every  white  man  come 


RICHARDSON    VS.    RAINEY.  281 

to  vote  was  dressed  in  a  red  shirt,  red  l)aiid  ou  his  hat,  and  a  great  many  with  pistols 
buckled  ou  the  outside  ;  and  a  man  with  name  of  Stephan  Woodruft' drew  and  cocked 
his  pistol  on  me ;  he  was  forcing  two  or  three  colored  men  up  to  the  polls  to  vote,  and 
I  remarked  to  leave  the  men  untrammeled,  they  could  vote  as  they  pleased  and  get 
their  tickets  from  whom  they  pleased.  He  cursed  me,  saying  he  would  blow  out  my 
brains — "these  men  are  living  ou  my  plantation."  I  was  one  of  the  supervisors  at 
that  poll.  Simeon  Perry,  another  Democrat,  brought  four  colored  men  to  the  polls, 
and  marked  their  tickets  in  order  to  find  out  from  the  Democratic  managers  whether 
these  men  voted  the  Democratic  ticket.  A  colored  man  came  up  to  vote  at  the  poll, 
and  asked  for  a  Republican  ticket,  and  Sydney  Kelly  told  him,  "  Here  is  a  Democratic 
ticket"  ;  he  refused  to  take  it,  and  a  Republican  came  np  with  Republican  tickets  in 
his  hands  and  offered  one  to  this  voter,  which  he  took  and  voted.  After  leaving  the 
box,  the  same  man  who  offered  him  the  Democratic  ticket  asked  him  who  he  voted 
for,  and  he  said,  "Of  course  I  voted  for  Chamberlain  and  Hayes,"  and  Sydney  Kelly 
struck  him  in  the  mouth.  When  the  counting  of  the  votes  began,  O.  D.  Lee  exhibited 
his  list  he  had  of  colored  voters  in  order  to  find  out  how  they  voted  by  comparing  his 
list  with  the  marked  tickets  given  colored  people  to  vote  by  Democrats.  Simeon  Perry 
said  "Fotir  damn  niggers  deceived  me,  for  they  did  not  vote  the  tickets  I  marked  for 
them."    He  then  said,  "  They  have  lost  their  best  friend  by  telling  me  a  lie." 

Q.  On  the  4th  day  of  November  did  you  see  the  Timmousville  rifle-club  come  into 
Darlington? — A.  I  did  see  them  come  in,  cheering,  yelling;  one  man  had  a  gun  strapped 
across  his  back ;  saw  another  one  in  a  wagon ;  all  members  were  dressed  in  red  shirts  ; 
nearly  all  nad  pistols  8trap]>ed  around  tbeir  waists  on  the  outside,  and  the  one  in  front 
had  the  gun  strujjped  across  his  shoulder.  I  was  standing  in  the  post-oflace  door  look- 
ing ou,  and  one  of  them  cursed  me  for  a  damned  Republican  sou  of  a  bitch.  I  had  not 
said  one  word.  I  saw  a  wagon  in  the  rear  of  the  procession  covered  with  fodder,  said 
to  contain  guns;  this  was  the  same  wagon  had  the  gun  exposed  with  a  bjiyonet  fixed ; 
and  the  same  wagon  followed  the  procession  ou  their  homeward  march,  with  the  fod- 
der over  it. 

Alfred  Smith,  sworo,  continued  testifying  of  a  meeting  held  Novem- 
ber 4,  1876 : 

Q.  Can  yon  specify  any  otJier  instances  of  show  of  violence  except  the  ones  you  have 
already  stated  f — A.  At  the  second  meeting  in  Timmousville  we  met  rifle-clubs  and 
men  ou  horseback  with  rifles  strapped  around  their  backs  coming  to  Darlington  ;  when 
we  got  on  the  other  side,  six  or  seven  miles  from  Darlington,  we  met  those  men.  They 
cursed  Whittemore  and  Sam  Keith.  Mr.  Morris,  the  leader,  came  up  and  apologized 
by  saying  that  he  did  not  wish  for  his  men  to  insult  anybody.  On  arriving  in  Tim- 
mousville we  found  a  stand  erected.  An  hour  afterward  the  speaking  began,  and  we 
did  not  have  any  trouble  during  the  meeting  at  all ;  had  a  torchlight  procession  and 
started  for  home;  and  just  coming  out  of  Timmousville  met  the  same  men,  who 
stopped  in  the  road  to  prevent  us  from  coming  out,  and  drew  their  guns  and  pistols 
and  had  on  red  shirts.  I  heard  a  good  many  of  them  say  they  intended  to  have 
Hampton  and  reform,  and  not  a  negro  should  rent  a  piece  of  their  land.  We  had,  ia 
order  to  avoid  a  collision,  to  take  the  ditch.  Captain  Whipper,  in  charge  of  the 
torchlight  procession,  then  requested  that  they  either  give  away  or  move,  and  they 
would  not  do  either.  We  went  across  the  ditch  over  in  the  woods,  and  then  the  red- 
shirt  men  went  on  home  without  any  trouble. 

Q.  You  know  that  a  large  Democratic  meeting  was  held  at  Darlington  that  day,  and 
that  distinguished  speakers  were  to  address  the  meeting? — A.  I  do  not  know,  and  did 
not  hear ;  we  met  them  going  to  Darlington,  and  on  our  way  returning. 

Q.  How  manv  men  did  vou  meet  that  morning  and  in  the  evening  wearing  red 
shirts f— A.  About  200  or  300. 

Q.  Can  you  specify  any  other  show  of  violence  except  the  ones  mentioned? — A.  I 
can't  name  any  others  just  now. 

Q.  You  say  there  were  about  400  or  500  Democrats  there  that  day;  how  many  Re- 
publicans were  there  on  that  day  ? — A.  About  200  or  300  were  present. 

Q.  How  many  guns  did  you  see  in  the  party  you  met  returning  from  Timmonsvlll© 
to  Darlington  the  second  time,  at  TimmonsvilleT — A.  About  3.5  of  the  party  had  im- 
jjroved  guns  and  repeaters. 

Q.  How  many  mounted  men  went  up  to  the  Republican  stand  in  the  evening? — A. 
About  400  or  500,  of  which  200  were  on  horseback. 

Q.  Did  not  those  men  simply  ride  up,  and  ride  up  to  the  opposite  side  of  the  stand 
from  the  militia  you  spoke  of? — A.  They  formed  a  half  circle  to  the  side  of  the  militia, 
the  head  of  the  horses  to  the  stand. 

Q.  Did  you  hear  any  of  these  men  make  any  interrupHon  except  a  request  to  be 
heard  ? — A.  They  did. 

Q.  What  was  it?— A.  I  heard  a  Democrat  ask  what  I  stated  already  in  my  examina- 
tiou-in-chief. 

Q.  AMio  made  use  of  that  remark  to  Whittemore  ? — A.  I  don't  know. 


282  DIGEST    OF    ELECTION    CASES. 

Q  Yon  say  Mr.  Oliver  had  twelve  pistols;  how  did  you  count  them  ? — A.  The  han- 
dles were  sticking  out  of  the  mouth  of  the  hajr. 

S.  J.  Keith  sworn  (page  345) : 

Q.  On  the  4th  day  of  November  did  uot  the  Kepublicaus  have  another  mivss  meeting 
at  Timmonsville? — A.  We  did;  it  was  the  last  meeting  we  had;  the  Democrats  also 
had  one  at  the  court-house.  While  going  to  Timmonsville  we  met  three  clubs  on 
horseback,  with  red  and  blue  shirts,  pistols  ou  the  outside  of  their  shirts,  and  rifles 
across  their  backs;  before  we  got  to  Timmonsville  we  met  another  club.  I  had  a 
wagon,  and  some  of  the  speakers  were  with  me,  Whittemore;  aud  as  they  were  pass- 
ing us,  one  man  with  the  name  of  Atkinson  hallooed  out  three  cheers  for  Whittemore, 
the  damned  old  son  of  a  bitch;  they  cursed  every  Republican,  and  would  get  into  a 
fuss  right  there,  if  we  had  not  been  quiet.  They  yelled  aud  fussed  a  great  deal.  We 
went  on  to  Timmonsville ;  had  a  very  quiet  party,  because  the  Democrats  were  not  there, 
and  the  presence  of  the  soldiers  had  a  great  deal  to  do  in  keeping  the  peace.  We  re- 
mained to  liave  a  torchlight  procession,  and  as  we  were  coming  near  Eagsdale's  store, 
a  lot  of  white  men  came  to  my  wagon,  where  Mr.  Whittemore  was,  aud  cursed  him 
shamefully,  and  by  the  time  we  got  into  the  road  leading  to  Darlington  we  heard  the 
Democratic  band  returning  from  Darlington.  We  halted,  the  road  being  very  narrow, 
that  they  might  go  on  and  pass,  for  fear  of  a  collision  and  to  avoid  trouble;  they  in- 
sisted upon  turning  the  street  we  were  on,  aud  make  us  give  way,  and  wht-n  we  would 
not  give  way  they  went  on ;  they  turned  out  of  the  direct  way ;  aft«r  they  passed 
we  came  home.    We  had  no  other  trouble  except  at  the  places  stated. 

Jourdau  Lang  (colored)  sworn  (page  326) : 
(The  meeting  was  held  first  part  of  September.) 

Question.  State  what  occurred  at  Timmonsville. — Answer.  I  was  at  the  meeting  at 
Timmonsville.  A  platform  was  erected  by  Republicans  and  Democrats.  After  the 
Republicans  from  Darlington  got  there  they  split,  because  it  was  reported  that  there 
would  be  a  fuss,  a  fight  ou  that  day,  or  confusion,  in  case  that  the  Republicans  refused 
to  have  a  joint  discussion.  The  Republicans  withdrew  from  the  stand,  gave  it  up  to 
the  Democrats,  and  removed  to  about  a  half  of  a  mile  from  there.  After  we  had  re- 
moved, a  committee  came  from  the  Democrats  requesting  a  joint  discussion,  which 
was  refused.  A  committee  of  five  Democrats  wore  then  sent  to  listen  at  the  discussion 
of  the  RepubJicans.  1  was  chairman  of  the  Republican  meeting  after  they  withdrew 
from  their  former  place  of  meeting.  After  that  they  sent  a  committee  to  ask  if  they 
all  could  come  to  attend  our  meeting  :  this  was  also  granted.  As  chairman  of  the  meet- 
ing I  know  that  this  request  was  granted.  They  came  down  mounted  ;  about  four  or 
five  hundred,  mounted  aud  well  armed.  Our  meeting  adjourned  about  half  of  an  hour 
after  they  got  there.  Mr.  Richardson  came  with  them.  I  was  requested  to  induce  Mr. 
Richardson  to  speak,  but  declined,  not  having  any  time,  having  long  ways  to  go  ;  but 
a  considerable  crowd  remained,  but  not  long  enough  for  Mr.  Richardson  to  speak,  who 
did  not  speak. 

It  is  most  respectfully  submitted  the  evidence  establishes  General 
Hampton's  supporters  had  determined  from  the  day  of  liis  nomination 
to  elect  him — by  force  and  extreme  violence,  if  need  be. 

The  colored  people  had  been  lately  enfranchised,  and  were  most  jeal- 
ous lest  they  might  lose  their  liberty,  and  were  watchful  of  every  act 
on  the  part  of  their  late  masters. 

It  is  asserted  in  the  majority'  report  the  policj^  of  the  Hampton  can- 
vass was  conciliatory,  and  resolutions  of  conventions  and  public  speeches 
are  referred  to  as  proof  of  the  fact. 

We  have  examined  the  record  with  the  greatest  care  for  any  explana- 
tion from  any  stand-point  of  the  armed  marauding  we  have  described 
consistent  with  a  conciliatory  policy  we  feel  justified  in  characterizing 
as  an  intimidation  policy,  coupled  with  the  violence  the  evidence  de- 
scribes. 

The  Democratic  committee  called  upon  the  supporters  of  General 
Hampton  to  adopt  the  following  pledges : 

Sumter,  S.  C,  October  25,  1876. 
The  Democratic  executive  committee  recommend  the  adoption  of  the  following 
pledge : 

J.  D.  BLANDING, 
Chairman  Democratic  Executive  C^mmittee> 
A.  W.  SCDKR,  Secretary. 


RICHARDSON    VS.    RAINEY.  283 

The  State  of  South  Carolina  : 

We,  the  undersigned,  citizens  of  Sumter  County,  hereby  pledge  ourselves  (each  for 
himself)  that  we  will  not  assist  or  exteud  any  favor  to  any  person  of  either  race  or 
color  who  shall  vote  for  the  Republican  State  or  county  ticket  at  the  election  on  7th 
November  next ;  and  that  we  will,  in  all  business  transactions,  give  the  preference  to 
euch  persons  as  shall  vote  the  Democratic  Stat*-  and  eonnty  ticket  at  said  election. 

Exhibit  A. 

Darlington  County, Tovcnahip  : 

We  hereby  pledge  ourselves  to  each  other  that  we  will  not  rent  or  let  lands  or 
houses,  nor  advance  supplies  on  credit,  to  any  persou  who  shall  vote  the  Radical  ticket 
at  the  election  to  be  held  on  the  7th  of  November  next ;  nor  will  we  employ  as  a 
mechanic  any  jierson  who  shall  so  vote  at  said  election,  or  keep  in  his  employment 
those  who  do  so  vote  ;  nor  will  we  employ  in  any  capacity  such  persons  as  may  be 
designated  by  the  executive  coujuiittee  of  the  Democratic  party  foi-  this  county,  in  a 
list  to  be  furnished  bv  said  committee.  This  pledge  to  be  of  force  until  Januaiy  1, 
1878. 

Aud  of  which  General  Hampton  said,  niildlj',  "  that  policy  has  not  my 
approbation.^^  (P.  249  of  Record.)  He  says  he  knew  of  "  that  policy." 
He  does  not  say  he  condemned  it;  and  you  fnil  to  find  an  utterance  of 
bis  advising^  otherwise;  and  in  speaking  of  the  "  Rifle  Clubs,"  at  p. 
248,  he  says:  '•'■  As  soon  as  the  proclamation  was  issued  I  advised  all  the 
clubs  to  disband.^^  The  majority  rei)ort  abounds  with  quotations  from 
the  evidence  of  General  Hampton  and  others,  all  in  sympathy  with  him, 
judges  and  sheriffs,  that  "all  was  quiet  in  South  Carolina ; "  "  there  were 
no  disturbances."  South  Carolina  was  doubtless  quiet ;  she  endured,  or 
enjoyed,  as  you  i)leape,  the  quiet  of  a  conquered  people,  subjected  to 
military  rule.  She  had  the  peace  and  order  the  strong  arm  of  a  mili- 
tary despot  may  maintain. 

The  colored  electors  were  in  the  majority,  aud  General  Hampton  must 
have  their  votes  divided.  Prizing  their  lately  acquired  freedom,  they 
naturally  regarded  this  "  conciliatory  i)olicy"  as  threatening  it.  Their 
late  masters,  in  a  time  of  peace,  with  arms  in  their  hands,  were  demand- 
ing their  votes  for  Ham])ton.  They  did  not  say  to  them,  "  Except  you 
do  this  thing  we  will  kill  you ;"  that  was  left  for  inference.  They  did 
say  to  them, "  Except  you  do  this  thing  we  will  starve  you ;  we  will 
not  give  you  shelter  for  your  heads  ;  we  will  neither  employ  you  nor  rent 
you  land." 

Any  race  of  men,  except  one  subjected  to  involuntary  servitude  for 
ages,  would  have  been  frantic  with  despair,  but  these  mute  "  hewers 
of  wood  and  drawers  of  water"  prepared  to  again  endure  the  yoke,  or 
at  least  make  terms  with  the  apparent  masters.  The  armed  men  could 
intend  nothing  but  their  subjugation  ;  the  pledges  not  to  hire  them,  or 
rent  them  land,  threatened  them  with  starvation,  yet  they  were  not 
"  unanimous  for  Hampton."  In  their  churches  and  by  their  firesides, 
out  of  sight  of  the  "armed  bands,"  they  grew  strong  in  thought;  and  it 
would  seem  there  must  have  been  in  this  Congressional  district  twenty 
or  twenty-five  black  men,  either  so  ignorant  as  not  to  view  the  situation 
"  as  dangerous  to  their  race",  or  so  debased  as  to  be  indifferent  if  they 
did,  or  to  have  been  able  to  read  the  future  with  a  prophetic  eye,  and 
recognize  amid  all  this  disturbance  Hampton  as  their  prophet — and  of 
these  men  their  fellows  were  intolerant;  and  the  eight  hundred  pages 
of  evidence  disclose  that,  in  a  voting  poi)ulation  of  upwards  of  30,000, 
in  7,500  square  miles  of  territory,  twenty  colored  men  had  personal 
altercations,  and  were  threatened  with  social  ostracism  if  they  voted 
the  Democratic  ticket ;  nevertheless,  tcere  not  intimidated  thereby.  One 
cow-pen  was  burned ;  one  man  had  a  quarrel  with  his  wife,  struck  her, 


284  DIGEST    OF    ELECTION    CASES. 

and  was  abaudoned  by  her ;  she  had  left  liim  twice  before ;  and  one  man 
was  struck  in  the  face  by  a  woman,  armed  with  an  umbrella.  (See  Kec- 
ord,  p.  87.) 

Areas  of  the  counties  embraced  in  the  first  district. 

Sqaate  miles 

Chesterfield 879 

Darlington - 873 

Georgetown 888 

Horry 1,082 

Marion 1,219 

Marlborough 546 

Sumter 953 

Williamsburg 1, 062 

Total 7,502 

There  is  nothing  in  the  record  to  show  either  social  ostracism  or  fear 
wa«  preventing  the  colored  voters  from  supporting  Hampton.  On  the 
contrary,  the  "  j)olicy  "  we  have  described,  according  to  the  evidence  of 
General  Hampton,  according  to  all  the  witnesses  called  by  the  contest- 
ant, according  to  the  majority  report,  was  "conciliating"  them  and 
the'y  were  promising  to  support  the  Democratic  candidates  until  Gov- 
ernor Chamberlain's  proclamation  appeared. 

It  is  true  there  were  some  members  of  the  State  militia  still  in  pos- 
session of  State  arms,  but  there  is  nothing  in  the  case  evidencing  an 
improper  use  of  them. 

We  submit  there  is  nothing  in  this  case  to  justify  the  expulsion  of 
Mr.  Eainey  upon  the  score  of  intimidation  or  social  ostracism. 

We  subjoin  a  table  of  the  voting  population  of  the  first  Congressional 
district,  taken  from  the  census  of  1875,  showing — 

White  voters 1 14,147 

Colored  voters 20, 47^ 

Aggregate 34, 620 

Majority  colored  voters 6, 326 

Rainey's  (Republican)  vote  was 18, 103 

Richardson's  (Democrat)  vote  was 16, 575 

Aggregate 34, 678 

The  vote  verifies  the  census.  Kainey's  majority  was  1,528,  showing 
Richardson  must  have  received  4,798,  nearly  one-fifth  of  the  colored  vote, 
demonstrating  it  was  not  operated  upon,  either  by  fear  of  violence  or 
social  ostracism  among  themselves,  to  vote  for  Mr.  Rainey. 

Voters  over  21  years  of  age. 


Goonties. 


White.   Black. 


Chesterfield 1,543 

Darlington 1    2,362 

Georgetown :        643 

Horry 1,696 

3,081 
1,583 
1,827 
1,412 


liarion 

llf  arlborongb  . . 

Sumter   

Williamsbarg 


1,199 
3,747 
\  3, 119 
712 
2,833 
1,925 
4,362 
2,576 


Total I  14,147  i    20,473 


RICHARDSON    VS.    RAINEY.  285 

As  to  the  second  point,  intimidation  by  the  Federal  troops : 

It  is  not  claimed  that  the  troops  coerced,  intimidated,  or  persuaded ; 
that  an  officer  or  soldier  did  or  said  aught  indicating  a  personal  prefer- 
ence for  one  side  or  the  other. 

They  were  stationed,  usually,  so  far  as  the  evidence  discloses,  out  of 
sight,  and  in  no  case  immediately  at  the  polls ;  250  or  400  yards  are 
given  as  their  nearest  approach  to  the  polls. 

An  officer  and  t\venty-nin«  men  were  divided  between  Sumter  Court- 
House  and  Lynchburgh,  places  10  miles  apart,  in  Sumter  County. 

Charles  H.  Morse  (evidence  at  page  90  of  the  record) : 

Q,  14.  Where  were  the  United  States  troops  stationed  iu  this  county ;  nearest  to 
Avhat  ]>olls,  and  how  near  to  the  polls?  Were  any  of  the  United  States  troops  at  or 
near  the  polls  on  the  day  of  the  election  f — A.  A  small  detachment  of  United  States 
troops,  under  Major  Kelley,  arrived  in  this  town  a  few  days  before  the  election,  and 
went  away  a  few  days  after  tlie  election.  They  were  encamped  east  of  the  railroad 
depot,  about  half  a  mile  from  the  polls.  They  did  not  appear  at  or  near  the  polls  on 
the  day  of  the  election. 

Wilder  (pages  31,  32) : 

Q.  How  many  soldiers  were  there  in  the  county  of  Sumter  ? — A.  About  fifteen  pri- 
vates and  two  officers,  at  Sumter  Conrt-House.  At  Lynchburgh  there  were  one  lieuten- 
ant and  about  ten  men,  brought  from  Tiramonsville  ;  and  I  heard  Mr.  Wells  say  he 
brought  them  there  ;  in  all  about  twenty-nine  men. 

An  officer  and  fifty-six  men  were  in  Darlington  County. 
(See  evidence  as  to  Timmonsville.) 
Culpeper  (157,  158): 

Q.  When  were  United  States  troops  sent  into  the  county  ? — A.  They  arrived  here 
on  Friday  night,  November  3,  and  left  about  one  week  after  the  election ;  56  men  in 
all  came  here  ;  25  or  30  remained  during  the  election,  several  squads  haviug  been  sent 
off  to  Darlington,  Florence,  and  Lynchburgh. 

Timmonsville,  Darlington,  and  Florence  are  in  Darlington  County, 
and  the  twenty-five  or  thirty  men  were  divided  between  those  points, 
or  ten  miles  apart. 

So  far  as  the  record  shows,  the  foregoing  discloses  the  troops  in  the 
first  Congressional  district,  comprising  the  counties  of  Chesterfield, 
Marlborough,  Darlington,  Sumt«r,  Marion,  Horry,  Williamsburgh,  and 
Georgetown. 

The  Constitution,  section  4,  article  1,  provide?,  in  reference  to  the 
election  of  Representatives  to  Congress — 

But  Congress  may  at  any  time  by  law  make  or  alter  such  regulations. 

The  attention  of  the  House  has  in  so  marked  a  manner  and  so  recently, 
in  the  Dean-Field  case,  been  called  to  the  legislation  upon  the  subject 
of  Congressional  elections  as  to  render  quotations  from  the  laws  upon 
that  subject  hardly  necessary  ;  but  see  General  Statutes : 

Sec.  5506.  Every  person  who,  by  any  unlawful  means,  hinders,  delays,  prevents,  or 
obstructs,  or  combines  and  confederates  with  others  to  hinder,  delay,  prevent,  or  ob- 
struct, any  citizen  from  doing  any  act  required  to  be  done  to  qualify  him  to  vote,  or 
from  voting,  at  any  election,  in  any  State,  Territory,  district,  county,  city,  parish, 
township,  school  district,  municipality,  or  other  territorial  subdivision,  shall  be  fined 
not  less  than  five  hundred  dollars,  or  be  imprisoned  not  less  than  one  month  nor  more 
than  one  year,  or  be  ymnished  by  both  such  fine  and  imprisonment. 

Sec.  55U7.  Every  person  who  prevents,  hinders,  controls,  or  intimidates  another  from 
exercising  or  in  exercising  the  rights  of  sutt'rage,  to  whom  that  right  is  guaranteed  by 
the  fifteenth  amendment  to  the  Constitution  of  the  United  States,  by  means  of  bribery 
or  threats  of  depriving  such  person  of  employment  or  occupation,  or  of  ejecting  such 
person  from  a  rented  house,  lands,  or  other  property,  or  by  threats  of  refusing  to  renew 
leases  or  contracts  for  labor,  or  by  threats  of  violence  to  himself  or  family,  shall  be 
punished  as  provided  in  the  preceding  section. 

The  last  clause  of  section  8  of  article  1  of  the  Constitution  gives  Con- 


286  DIGEST    OF    ELECTION    CASES. 

gress  the  power  "  to  make  all  laws  which  shall  be  necessary  aud  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  powers  vested 
by  this  Constitution  in  the  Government  of  the  United  States,  or  any 
department  or  officer  thereof."  • 

The  last  clause  of  section  3  of  article  2,  speaking  of  the  Pi^esideut, 
says: 

He  shall  take  care  that  the  laws  be  faithfully  executed. 

Section  4  of  article  4  is  : 

The  United  States  shall  guarantee  to  every  State  ux  this  Union  a  republican  form  of 
government,  and  shall  protect  each  of  them  against  invasion ;  and  on  application  of 
the  legislature  or  of  the  executive  thereof  (when  the  legislature  cannot  be  convened) 
against  domestic  violence. 

In  pursuance  of  the  foregoing  provisions  of  the  Constitution.  Ih  pur- 
suance of  the  highest  law,  both  to  an  individual  and  a  government,  of 
self  preservation,  Congress  has  enacted  section  5297. 

Skc.  5297.  In  case  of  an  insurrection  in  any  State  against  the  government  thereof, 
it  shall  be  lawful  for  the  President,  on  application  of  the  legislature  of  such  State,  or 
of  the  executive  when  the  legislature  cannot  be  convened,  to  call  forth  such  number 
of  the  militia  of  any  other  State  or  States,  which  may  be  applied  for,  as  he  deems  suf- 
ficient to  suppress  such  insurrection,  or,  on  like  application,  to  employ  for  the  same 
purposes  such  part  of  the  land  or  naval  forces  of  the  United  States  BvS  he  deems  neces- 
sary. 

Sec.  5'298.  Wlienever,  by  reason  of  unlawful  obstructions,  combinations,  or  assem- 
blages of  persons,  orreliellion  against  the  authority  of  the  United  States,  it  shall  be- 
come impracticable,  in  the  jtulgment  of  the  President,  to  enforce,  by  the  ordinary  course 
of  judicial  proceedings,  the  laws  of  the  United  States,  within  any  State  or  Territory, 
it  shall  be  lawful  for  the  President  to  call  forth  the  militia  of  any  or  all  of  the  States, 
and  to  employ  such  parts  of  the  land  aud  naval  forces  of  the  United  States  as  he  may 
deem  necessary  to  enforce  the  faithfnl  execution  of  the  laws  of  the  Unit6<l  States,  or 
to  suppress  such  rebellion  in  whatever  State  or  Territory  thereof  the  laws  of  the 
United  States  may  be  forcibly  opposed,  or  the  execution  thereof  forcibly  obstructed. 

^Sec.  5^99.  Whenever  insurrection,  domestic  violence,  unlawful  combinations,  or  con- 
spiracies in  any  State  so  obstructs  or  hinders  the  execution  of  the  laws  thereof,  and  of 
the  United  States,  as  to  deprive  any  portion  or  class  of  the  people  of  such  State  of  any 
of  the  rights,  privileges,  or  innnunities,  or  protection  named  in  the  Constitution  and 
secured  by  the  laws  for  the  protection  of  snch  rights,  privileges,  or  immunities,  and 
the  constituted  authorities  of  such  State  are  unable  to  protect,  or,  from  any  cause,  fail 
ip  or  refuse  protection  of  the  people  in  such  rights,  such  facta  shall  be  deemed  a  denial 
by  such  State  of  the  equal  protection  of  the  laws  to  which  they  are  entitled  vinder  the 
Constitution  of  the  United  States;  and  in  all  such  cases,  or  whenever  any  such  insur- 
rection, violence,  unlawful  combination,  or  conspiracy,  opposes  or  obstructs  the  laws 
of  the  United  States,  or  the  due  execution  thereof,  or  impede-s  or  obstructs  the  due 
eonrse  of  justice  under  the  same,  it  shall  be  lawful  for  the  President,  and  it  shall  be 
his  duty,  to  take  such  measures,  by  the  employment  of  the  militia  or  the  land  and 
naval  forces  of  the  United  States,  or  of  either,  or  by  other  means,  as  he  jnay  deem 
necessary,  for  the  suppression  of  snch  insurrection,  domestic  violence,  or'combinations. 

Sec.  5300.  Whenever,  in  the  judgment  of  the  President,  it  becomes  necessary  to  use 
the  military  forces  tinder  this  title,  the  President  shall  forthwith,  by  proclamation, 
command  the  insurgents  to  disperse  and  retire  peaceably  to  their  respective  abodes 
within  a  limited  time. 

]So  question  is  made  but  the  proper  proclamation  was  made  by  Gov- 
ernor Chamberlain,  the  proper  call  upon  the  President,  and  the  proper 
proclamation  issued  by  the  Federal  Government. 

It  has  not  been  claimed  the  legislature  of  the  State  of  South  Caro- 
lina might  have  been  convened  to  take  appropriate  action  in  reference 
to  the  disorders  we  have  referred  to.  It  has  not  been  claimed  disorders 
did  not  exist.  On  the  contrary,  tlie  majority  report  asserts  so  great  was 
the  terrorism  exercised  by  the  majority  of  the  colored  people  as  to  pre- 
vent the  exercise  of  the  elective  franchise  by  the  minority.  Arms  are 
alleged  in  their  hands  lor  improper  uses.  That  we  expressly  deny.  We 
have  mildly  depicted  from  our  stand-point  tlie  utter  perversion  of  a  free 
popular  government  by  the  Hampton  party,  a  condition  of  terrorism 


RICHARDSON    VS.    RAINEY.  287 

and  violence  without  parallel  in  any  land  under  a  constitutional  govern- 
ment 

Grant  the  premises  of  either  report,  grant  the  existence  of  evidence 
fairly  tending  to  show  the  same,  the  governor  of  South  Carolina  was 
called  to  act  judicially  in  appealing  to  the  United  States  Government 
for  aid. 

The  majority  report  fails  to  suggest  he  acted  corruptly.  Called  upon, 
the  President  of  the  United  States  had  but  one  duty  to  perform — assign 
the  forces  at  his  disposal  to  the  police  duty  of  preserving  order. 

The  citizen  was  not  to  be  influenced  in  the  exercise  of  his  personal 
rights  by  that  police  force,  and  he  wtis  to  be  protected  in  that  exercise. 

We  do  not  insist  the  President  acted  ministerially.  He  acted  judi- 
cially, and  in  the  exercise  of  a  wise  discretion,  in  the  light  of  the  evidence 
submitted  to  him. 

As  we  have  already  stated,  it  is  not  alleged  the  soldiers  did  anything 
to  influence  the  election,  that  is,  committed  any  overt  act.  Located  as 
aforesaid,  it  appears  they  were  silent  and  passive  spectators  of  the 
scenes,  without  expressing  preference  in  the  result  of  the  election.  And 
it  is  claimed  these  men  coerced  the  colored  voters  to  a  support  of  the 
Republican  ticket. 

We  grant  their  presence  emboldened  the  theretofore  despairing  black 
man  to  dare  to  exercise  a  freedman's  right  and  vote  his  choice. 

The  majority  report  advises  us  there  was  no  violence  before  the  troops 
came.  We  grant  there  was  none,  because  terrorism  had  stamped  out 
resistance,  threatened  starvation  had  crushed  the  souls  of  these  men^ 
and  when  the  Federal  soldiers  appeared  upon  the  scene,  and  it  was  un- 
derstood the  rifle-clubs  and  saber-clubs,  while  they  would  valiantly 
frighten  negroes,  did  not  want  a  conflict  with  Federal  authorities,  we 
assert,  these  freedmen  to  a  great  extent  took  courage  to  enjoy  their 
highest  privilege  and  right. 

The  proposition  of  the  majority  is,  a  police  forces  detailed  by  the  Fed- 
eral authorities,  that  simply  enables  the  citizen  to  enjoy  his  rights,  is 
illegal,  and  renders  that  enjojment  illegal  and  void. 

The  proposition  of  the  majority  is,  that  a  community  terrorized  into 
a  course  of  iuvoluutary  action,  or  subjugated  to  the  extent  of  being 
unable,  through  fear  of  violence,  to  take  their  lawful  part  in  an  election, 
if  from  the  presence  of  troops  they  are  relieved  of  their  apprehension, 
and  exercise  their  rights  as  electors,  such  exercise  is  illegal  and  void. 

Another  novel  proposition  is  introduced  into  this  case.  Governor 
Hampton  swears,  with  others,  that  they  were  told  (the  colored  men 
were  told)  the  troops  were  placed  there  to  make  them  vote  the  Repub- 
lican ticket,  and  on  this,  solely,  is  based  the  idea  of  coercion.  It  does 
not  appear  the  colored  voters  believed  it. 

It  does  not  appear  any  responsible  person  told  them  so.  It  does  not 
appear,  in  fact,  any  considerable  number  were  told  thus.  It  was  a  rumor 
that  reached  the  ears  of  the  witnesses.  The  fact  doubtless  is  they  be- 
lieved the  troops  were  sent  there  to  enable  them  to  vote  the  Republican 
can  ticket  if  they  desired  to.  But  one  fact  stands  out  clear  in  the  case, 
the  colored  population  wa«  not  operated  upon  by  fear  of  the  soldiers. 
The  fact  is  manifest  the  only  effect  of  the  troops  upon  the  freedmen  was 
to  give  them  confidence  to  vote  the  ticket  of  their  choice. 

The  report  discusses  the  English  law  in^  regard  to  the  presence  of 
troops,  and  fails  to  discover  the  dissimilarity  of  the  governments,  in  the 
case  of  the  United  States,  justifies  the  legislation  authorizing  the  use  of 
troops  as  a  police  force  even  at  an  election ;  in  the  case  of  England,  calls 
for  legislation  prohibiting  such  use. 


V 


288  DIGEST  OF  ELECTION  CASES. 

Here  the  government  is  of  the  people,  and  a  free  and  fair  election  is 
an  absolute  necessity  to  give  a  lawful  government ;  in  England  the 
executive  branch  of  the  government  is,  or  was  at  the  time  of  the  en- 
actment of  the  law  cited,  a  privileged  class,  and  to  the  end  the  people 
might  not  be  encroached  upon  by  the  Crown,  we  find  the  rule  and  the 
legislation  referred  to  prohibiting  the  presence  of  troops. 

In  the  judgment  of  the  undersigned,  the  action  of  the  Federal  Govern- 
ment was  justified,  and  incumbent  upon  it,  in  stationing  the  troops  as  it 
did  in  South  Carolina ;  that  nothing  in  the  conduct  of  the  troops,  neither 
did  the  fact  of  their  being  stationed  there,  influence  the  electors  to  vote 
otherwise  than  as  their  judgments  and  consciences  dictated  ;  but  to  the 
contrary,  the  action  of  the  Federal  Government  and  the  presence  of  the 
troops  enabled  the  freedmen  to  participate  in  the  election  and  vote  for 
the  candidates  they  preferred  ;  and  at  this  time,  removed  from  the  elec- 
tion, we  trust  a  great  political  party  will  not  deem  it  proper  to  expel 
from  the  House  a  Eepresentative  reflecting  honor  upon  his  race  and 
creditably  representing  his  constituency  for  that  action  on  the  part  of 
the  General  Government  the  impartial  observer  cannot  but  justify. 

Inferentially,  at  least,  the  report  of  the  majority  denies  the  right  of 
the  General  Government,  upon  the  call  of  the  State,  as  provided  by 
Federal  laws,  under  any  conceivable  state  of  facts,  through  the  aid  of 
the  Army  as  a  police  force,  to  protect  the  elector  in  his  right  of  fran- 
chise at  a  Congressional  or  electoral  election.  With  that  view  we  have 
no  sympathy.  We  directly  afBrm  the  contrary  right.  The  question 
has  been  involved  directly  in  the  successful  efforts  of  the  nation  to  main- 
tain our  nationality  from  dismemberment,  and  all  the  States  are  now 
represented  here  because  of  the  firm  establishment  of  the  principle  by 
the  highest  power  to  which  the  contending  parties  could  appeal.  The 
denial  of  the  "authority"  here  will  neither  weaken  nor  disturb  the 
"judgment "  which  has  been  "  given"  by  the  people  ;  and  we  doubt  not, 
in  the  future,  the  Government  will  protect  the  citizen  in  the  full  en- 
joyment of  his  right  of  suffrage,  by  whichever  party  it  may  be  adminis- 
tered. And  we  submit  it  is  most  unprofitable  to  enter  a  useless  and 
feeble  protest,  which  only  avails  to  serve  a  temporary  purpose. 

The  undersigned  recommends  the  passage  of  the  following  resolution: 

Resolved,  Joseph  H.  Rainey  was  duly  elected  and  is  entitled  to  a  seat 
in  the  House  as  the  Eepresentative  in  Congress  from  the  first  Congres- 
sional district  in  the  State  of  South  Carolina. 

FRANK  HISCOCK. 


/ 


y 


FROST    VS.    METCALFE.  289 


R.  GRAHAM  FROST  vs.  liYNE  S.  3IETCAIiFE. 

TniBD  Congressional  District  of  Missourl 

Charges  of  illegal  voting,  and  that  votes  were  cast  for  contestant  and  not  counted, 
misconduct  of  the  ofticei-s  of  election,  and  that  numerous  persons  were  appointed 
United  States  marshals  solely  as  a  bribe  for  their  vote  for  contestee. 

Held,  That  it  is  presumed  that  the  officers  of  election  did  their  duty,  and  it  would  be 
dangerous  to  permit  the  solemn  act  of  sworn  officers  of  the  law  to  be  set  aside  by 
the  testimony  in  this  case  ;  and  it  would  be  still  more  dangerous  after  it  was 
known  that  ten  or  twenty  votes  wonld  change  the  result  of  an  election  to  permit 
the  officei-s  to  recall  their  proceedings  and  make  a  change  Avhich  would  reverse 
the  result  of  the  election. 

Contestant  is  entitled  to  the  benefit  of  votes  offered  for  him,  but  which  were  rejected 
by  reason  of  the  voter's  name  not  being  on  the  poll-books,  but  which  was  on  the 
registration  list. 

Congress  can  go  behind  all  returns,  but  to  authorize  the  House  ta  count  a  vote  four 
things  are  requisite :  First,  the  person  offering  to  vote  must  have  been  a  legal 
voter  ;  second,  he  must  have  offered  to  vote ;  third,  it  must  have  been  rejected ; 
and,  fourth,  it  must  be  shown  for  whom  he  intended  to  vote. 

As  to  the  use  of  7'28  deputy  marshals,  the  committee  cannot  make  any  estimate  irom 
conjecture  how  manyvoters  they  changed  by  their  conduct;  nor  would  it  be  safe 
or  warranted  that  the  parties  alleged  to  have  been  bribed  would  have  voted  the 
other  way. 

The  House  adopted  the  report  February  25,  1879. 


February  25,  1879. — Mr.  John  T.  Harris,  from  the  Committee  of 
Elections,  submitted  the  followiug 

RE  POET: 

Your  committee  having  had  under  consideration  the  foregoing  case 
beg  leave  to  submit  that  by  the  legal  authority  of  the  State  of  Missouri 
the  vote  between  these  parties  stands  thus: 

Metcalfe 8,099 

Frost 8,080 


19 

giving  to  the  sitting  member  a  majority  of  19  votes,  to  overcome  which 
the  contestant  claims  there  should  be  deducted  from  contestee  the  fol- 
lowing votes : 

First.  Proof  of  six  illegal  votes  cast  for' Metcalfe  by  negroes  who  were  not  resi- 
<lents  of  the  State  of  Missouri.  ^ 

Second.  By  proof  of  two  illegal  votes  cast  for  Metcalfe  by  parties  not  qualified  to 
vote  at  said  election  in  said  district. 

Third.  By  proof  of  twelve  votes  of  duly  registered  and  qualified  voters  whose  votes 
wer;>  legally  offered  for  Mr.  Frost,  but  were  placed  in  an  envelope  and  received  but 
not  connted. 

Fourth.  By  proof  of  a  mistake  made  by  the  judges  and  clerks  of  election  precinct 
No.  6:i  in  their  returns,  giving  to  said  Metcalfe  nine  more  votes  than  had  actually 
been  cast  for  him  at  said  poll. 

H.  Mis.  5S 19 


290  DIGEST    OF    ELECTION    CASES. 

Fifth.  By  proof  of  twenty-five  more  votes  being  counted  at  precinct  No  77  for  saiil 
Metcalfe  than  had  actually  been  thns  cast  for  him. 

Sixth.  By  proof  that  the  conduct  of  judges  and  United  States  supervisors  and  mar- 
shals at  said  precinct  No.  77,  in  handling  and  tampering  with  the  ballots  and  the  tal- 
lies, tainted  the  return  from  that  poll  with  fraud,  and  rendered  the  result  so  uncer- 
tain that  said  poll  must  be  wholly  rejected. 

Seventh.  By  proof  of  the  fact  that  the  United  States  marshals  were  appointed  and 
stationed  in  said  third  Congression.al  district  to  the  u umber  of  728.  That  said  mar- 
shals were  wholly  unnecessary  and  were  appointed  solely  for  the  pixrpose  and  in 
number  sufficient  to  make  reasonably  certain  the  election  of  Metcalfe. 

Eighth.  That  the  money  promised  them  by  the  Government  was  used  simply  as  a 
bribe  for  votes  for  Metcalfe.  That  many  of  them  were  Democrats,  who,  to  obtain  the 
position,  were  compelled  to  promise  and  pledge  that  they  would  vote  for  Lyne  S. 
Metcalfe. 

Your  committee  have  carefully  examiued  these  reasons  in  the  order  in 
which  they  are  stated  by  contestant. 

First.  They  do  not  regard  the  proof  as  suflBcient  to  show  that  the  six 
votes  in  question  were  not  legal  voters.  It  wholly  fails  to  show  that 
the  residence  of  these  colored  men  was  not  at  their  place  of  voting. 
Neither  does  the  evidence  show  that  they  voted  for  contestee.  It  would 
be  a  dangerous  doctrine  to  the  right  of  election  to  permit  the  solemn 
act  of  the  sworn  officers  of  the  law  to  be  set  aside  upon  such  testimony. 
It  is  to  be  presumed  that  they  did  their  duty.  A  majority  were  of  the 
same  politics  of  the  contestant,  antl  the  evidence  shows  they  sought  to 
be  watchful  and  careful  in  the  discharge  of  their  duty.  It  may  be,  and 
often  is,  difficult  to  determine  the  home  or  domicile  of  a  boatman,  or 
one  who  is  constantly  engaged  in  steamboating  or  on  railroads,  but  as 
the  law  contemplates  every  man  has  a  domicile  or  residence,  it  is  often 
only  known  to  the  party  himself.  It  is  a  question  of  intent,  known 
alone  to  the  party.  It  is  to  be  presumec^  the  election  officers  sifted 
these  voters  and  came  to  correct  conclusions.  The  evidence  is  not  suffi- 
cient to  show  they  did  not. 

The  next  point  in  order  relied  on  by  the  contestant  is,  that  twelve 
legal  votes  were  cast  for  Frost  and  not  counted.  In  considering  this 
question  we  shall  not  review  what  has  been  said  in  contestant's  brief 
or  in  contestee's  brief  in  regard  to  the  manner  in  whifh  the  registration 
lists  were  reprinted.  The  evidence  shows  conclusively  that  there  were 
mistakes  made  in  the  reprinting,  and  that  names  were  indiscriminately 
left  off  of  the  printed  list  furnished  the  judges  which  were  on  the  orig- 
inal registration  lists.  It  is  not  denied  that  any  man  whose  name  was 
on  the  original  registration-list  was  entitled  to  vote,  notwithstanding 
the  fact  his  name  might  have  been  left  otf  of  the  reprinted  lists.  It  has 
been  amply  shown  in  the  testimony  that  these  omissions  were  the  re- 
sult of  the  hurry  and  confusion  of  the  reprinting.  If  contestant  had 
proved  that  any  man's  vote  was  rejected  by  reason  of  his  name  not  be- 
ing on  the  poll- books,  whose  name  was  on  the  registration  list,  and  that 
his  vote  was  offered  for  him  and  not  counted,  then  he  is  entitled  to  the 
benefit  of  it. 

Your  committee  have  examined  the  evidence  with  great  care  in  re- 
gard to  these  twelve  votes.  It  is  too  voluminous  to  copy  in  this  report. 
It  is  sufficient,  therefore,  to  give  the  result  of  their  investigation,  which 
is,  that  the  evidence  does  show  that  A.  li.  Hyuson  and  August  Lamp- 
sing  were  legal  voters  at  precinct  63 ;  that  they  voted  for  Frost,  and  that 
their  votes  were  not  counted.  In  the  other  cases,  to  wit,  of  Dempsy 
Xash,  Colouay,  Amend,  Welch,  Dunn,  Carroll,  Godde,  Kennedy, 
and  Willow,  the  evidence  fails  to  show  that  the  votes  were  not  counted, 
or  that  they  were  properly  registered,  or  tliat  under  the  laws  of  Mis- 
souri they  were  entitled  to  vote.  The  testimony  tends  in  that  direction, 
but  is  not  of  that  character,  clear  and  conclusive,  which  ought  to  over- 


FROST    VS.    METCALFE.  291 

ride  the  sworn  act  of  the  officers  of  the  law,  whose  duty  it  was  on  that 
day,  then  and  there,  to  make  all  those  inquiries  and  form  a  correct 
judgment.     The  law  presumes  they  did. 

While  on  this  branch  of  the  subject  your  committee  will  dispose  of 
the  complaint  made  by  contestant  that  by  reason  of  the  errors  in  coi)y- 
\i\g  the  registration  list  he  lost  many  more  votes  than  coutestee.  To 
count  votes  which  were  never  offered  at  any  poll  is  carrying  the  doc- 
trine further  than  we  ever  knew  it.  To  authorize  this  committee  to 
count  a  vote,  four  things  are  requisite:  first  the  person  offering  to  vote 
must  have  been  a  legal  voter  at  the  place  it  offered  to  vote ;  second,  he 
must  have  offered  his  vote ;  third,  it  must  have  been  rejected ;  and 
fourth,  it  must  be  shown  for  whom  he  offered  to  vote.  These  requisites 
do  not  exist  in  these  cases,  therefore  your  committee  will  not  further 
consider  them. 

Fourth.  Contestant  complains  that  there  was  an  error  against  him 
of  9  votes  by  the  figure  1  being  placed  in  the  wrong  column  on  the 
memorandum  kept  by  the  clerk  in  the  counting  of  the  votes.  This 
error,  if  error  it  was,  was  not  discovered  for  five  days  after  the  elec- 
tion, but  that  fact  would  not  operate  here,  as  Congress  can  go  be- 
hind all  returns.  The  real  question  is,  was  it  an  error  ?  There  is  no 
evidence  except  the  paper  itself.  It  is  found  five  days  after  the  election, 
by  a  gentleman  Avho  kept  the  paper  from  which  the  result  was  announced, 
that,  in  the  column  second  from  the  right,  the  figure  1  stands  alone. 
From  this  it  is  inferred  that  it  was  intended  for  1.  All  the  witnesses 
testify  that  they  have  no  recollection  on  the  subject.  They  only  take  it 
to  be  an  error  because  they  find  the  unit  figure  in  the  ten  column.  As 
a  0  would  not  count  in  the  last  column,  it  is  suggested  to  the  witnesses 
that  in  the  hurry  of  recording  the  count  it  might  have  been  deemed  by 
the  clerk  unnecessary  to  add  it.  We  are  then  left  to  other  facts  to  deter- 
mine whether  this  was  an  error  or  not.  The  papers  and  officers  of  elec- 
tion wholly  fail  to  give  any  explanation  except  as  stated.  After  the 
l)olls  were  closed  and  the  result  ascertained,  the  duly  authorized  officers 
foot  up  the  result,  announce  it,  and  make  due  certification  and  return 
thereof  to  the  proper  officer.  It  would  be  a  dangerous  precedent,  after 
it  were  known  that  ten  or  twenty  votes  would  change  the  result  of  an 
election,  to  permit  the  officers  to  recall  their  proceedings  and  make  a 
change  which  would  reverse  the  result  of  the  election. 

But  whatever  the  result  would  be,  if  there  were  manifest  error,  it 
ought  to  be  corrected  by  the  officers  or  the  House.  The  aggregate  vote 
for  President  at  that  place  was  375 ;  for  governor,  370 ;  for  Congress, 
371.  This  corresponding  vote  for  the  highest  political  officers,  your 
committee  feel,  tends  strongly  to  show  that  there  was  no  error  in  the 
count,  and  that  the  certification  of  the  officers  of  election  wa«  correct. 

Fifth.  Contestant  claims  an  error  of  25  votes  at  precinct  No.  77,  in 
this,  that  25  votes  were  counted  ttcice  for  Metcalfe. 

The  only  witness  on  this  point  is  a  Mr.  W^ortman,  a  deputy  United 
States  marshal,  who  says  "  twenty  five"  was  called  out  for  Metcalfe 
and  recorded;  that  it  was  repeated,  "twenty-five"'  for  Metcalfe,  and 
the  clerk  seemed  to  be  writing ;  and  Furgerson,  who  was  also  a  deputy 
United  States  marshal,  sajs  "twenty-five"  was  called  out  twice  for 
Metcalfe,  and  that  when  the  attention  of  the  clerk  was  called  to  it,  the 
latter  told  the  witness  to  "  Shut  your  mouth  ;  there  is  a  supervisor  here 
to  attend  to  that";  and  Mr.  Schwaner  said  he  would  attend  to  that. 
And  they  further  prove  that  Dejong,  the  Democratic  clerk,  said  "If 
you  fellows  will  keep  your  months  stmt  we  will  get  along  a  heap  bet- 
ter," and  he  added,  "Too  much  confusion  here." 


292  DIGEST  OF  ELECTION  CASES. 

When  we  remember  that  a  majorityof  the  judges  of  election  aud  clerk 
were  Democrats  whose  iutegrity  has  uot  been  questioned,  it  would  be 
l)ast  comprehension  to  suppose  they  made  a  mistake  against  their  polit- 
cal  friend  of  twenty-fire  votes  by  one  dash  of  the  pen  when  their  atten- 
tion was  called  to  it  at  the  time. 

The  failure  of  contestant  to  call  these  officers  of  election  must  be 
construed  against  him.  Dejoug,  a  Democrat,  and  the  very  clerk  who 
kept  the  tally,  in  an  affidavit  on  page  65  says  when  tbis  second  call  of 
twenty-five  was  made  he  asked,  " '  Is  this  the  same  twenty-five  just  called 
by  the  judg;e  and  in  confirmation  or  uot !'  1  was  answered  it  was  the 
same  twenty-five,  and  in  consequence  it  was  not  again  entered  on  the 
tally-sheet  by  me  nor  counted  a  second  time." 

Contestant  objects  to  this  affidavit  as  not  being-  regularly  in  the  case. 
That  maj'  be,  but  it  may  serve  to  give  the  reason  why  contestant  did 
not  call  affiant.  The  contestant  having  failed  to  call  Dejong  and  the 
other  officers  of  election,  the  law  presumes  they  would  testify  to  the  cor- 
rectness of  their  pioceedings  if  they  had  been  called,  therefore  he  is  not 
injured  by  the  affidavit. 

At  this  place  Metcalfe  ran  about  25  votes  ahead  of  his  ticket,  just  25 
ahead  of  the  Presidential  electors,  and  27  ahead  of  the  Republican  can- 
didate for  governor,  while  Mr.  Frost  ran  just  20  behind  the  Democratic 
electors,  and  25  behind  the  Democratic  candidate  for  governor.  The 
aggregate  vote  for  President  was  926 ;  for  governor,  934  ;  for  Congress, 
as  counted,  931. 

The  testimony  tends  to  show  that  Mr.  Metcalfe  ran  ahead  of  his  ticket 
and  Mr.  Frost  behind  his.  The  number  of  officers  to  be  elected  was  very 
great,  and  the  record  shows  that  the  aggregate  vote  for  Congress  is  not 
as  large  as  the  whole  vote  polled.  The  poll-books  were  examined  by 
Mr.  Walsh,  a  witness  for  contestant,  who  is  asked  the  question  : 

Is  tbere  au.vtliiug  ia  those  figures  [alludiug  to  the  vote  received  by  the  vrtrious  cau- 
didates  for  oilice]  to  indicate  that  25  votes  were  counted  for  Metcalfe  twice* 
Answer.  1  do  uot  see  anything  here. 

Taking  all  the  evidence  to  be  true  as  given,  there  is  nothing  in  it  to 
prove  that  25  votes  were  counted  twice  for  3Ietcalfe,  and  thus  invalidate 
a  return  made  by  officers,  a  majority  of  whom  are  of  contestant's  politi- 
cal party. 

Sixth.  The  contestant  asks  that  the  whole  poll  at  Uo.  77  be  set  aside 
aud  discarded,  because  the  return  was  tainted  with  traud  by  handling 
and  tampering  with  the  ballots  and  tallies. 

The  only  evidence  on  this  subject  is  given  by  the  deputy  United  States 
marshal,  Wortman.  The  contestant  does  uot  call  any  of  the  judges  or 
officers  conducting  the  election,  a  majority'  of  whom  were  Democrats,  to 
sustain  this  charge.  As  before  said,  the  law  presumes  public  officers 
did  their  duty.  The  returns  are  in  due  form,  and  were  duly  counted. 
According  to  the  showing  of  this  witness,  the  falling  out  of  the  ballots 
was  purely  accidental.  Then  why  not  have  called  some  of  the  officers 
to  i)rove  these  facts  if  they  existed  ?  The  failure  to  call  them  raises  the 
presumption  that  they  would  not  sustain  the  charge.  They  do  not  oc- 
cupy the  position  of  parties  charged  with  fraud  testifying  in  their  own 
behalf,  but  they  are  presumed  to  be  impartial  and  disinterested,  or,  if 
I)ai  tial,  a  majority  of  them  are  presumed  to  lean  towards  contestant, 
therefore  would  have  been  willing  to  tell  the  truth  in  his  behalf. 

To  set  aside  a  formal  and  regular  return  made  by  sworn  officers  of 
both  political  i)artie8,  upon  such  evidence,  would  set  a  dangerous  pre- 
cedent, and  render  i^opular  elections  but  a  name  and  a  mockery. 


FP.OST    VS.    METCALFE.  293 

Seventh  aud  eio^btb,  in  regard  to  the  appointment  of  United  States 
marshals,  may  be/treated  together. 

Your  committee  de])recate  the  appointment  of  United  States  marshals 
under  any  pretext.  If  they  are  inteuded  as  conservators  of  the  peace, 
the  power  of  the  State  is  ample  for  that  purpose.  If  they  are  in  any 
manner  to  interfere  in  the  elections,  it  is  clearly  a  violation  of  the  laws 
of  the  States  for  them  to  do  so.  But  the  law  of  the  United  States  war- 
rants the  appointment  of  de])uty  marshals,  and  the  same  must  be  respected 
until  altered  or  repealed.  It  does  not  limit  the  number.  The  question 
in  this  case  is,  was  the  conduct  of  the  marshals  sucb  as  to  invalidate  the 
whole  election  f  It  cannot  with  any  strong  reason  be  urged  that  this 
committee  shall  make  an  estimate  from  conjecture  how  many  voters  they 
changed  by  their  conduct.  Nor  would  it  be  safe  or  warranted  that  the 
parties  alleged  to  have  been  bribed,  would,  but  for  such  bribe,  have 
voted  the  other  way.  If  the  conduct  of  these  deputy  marshals  was  such 
as  to  pollute  the  whole  vote  of  the  district,  then  the  committee  could  not 
sift  the  good  from  the  bad  voters  and  declare  a  result,  but  would  be 
compelled  to  find  there  had  been  no  fair  expression  of  the  popular  will, 
and  that  no  legal  election  had  been  held. 

The  Testimony  of  the  witnesses  called  by  the  contestant  to  prove 
bribery  and  fraud  on  the  part  of  those  marshals  is  very  vague  and  un- 
satisfixctory.  Some  eight  were  introduced,  who  do  prove  that  they  were 
appointed  with  the  promise  expressed  or  implied  that  they  would  vote 
for  iVIetcalfe,  but  five  admit  they  voted  for  Frost ;  two  say  they  voted  for 
Metcalfe,  but  they  preferred  him,  and  were  in  no  way  influenced  by  the 
office.  One  did  not  vote  at  all.  So  that  the  evidence,  so  far  as  it  goes, 
tends  to  repel  the  presumption  that  the  728  deputy  marshals  were  in- 
fluenced in  their  votes  by  reason  of  their  appointments.  To  say  the 
least  of  it,  the  testimony  is  not  very  reliable,  coming  as  it  does  from 
men  who  confess  their  own  abasement  and  degradation. 

There  is  nothing  in  this  evidence  that  would  justify  your  committee 
in  transferring  any  votes  from  Metcalfe  to  Frost  or  deducting  any  from 
Metcalfe,  much  less  would  it  justify  them  in  setting  aside  the  whole 
election. 

Your  committee  having  carefully  examined  all  the  questions  raised  in 
this  case,  can  see  no  reason  why  the  sitting  member  should  be  unseated ; 
therefore  they  recommend  the  adoption  of  the  following  resolutions,  to 
wit : 

Resolved,  Xhat  E.  Graham  Frost  was  not  elected  a  member  of  the 
Forty-fifth  Congress,  and  is  not  entitled  to  a  seat  in  the  House  of  Eepre- 
sentatives  from  the  third  Congressional  district  of  Missouri. 

Resolved.  That  Lyne  S.  Metcalfe  was  elected  a  member  of  the  Forty- 
fifth  Congress,  and  is  entitled  to  a  seat  in  the  House  of  Eepresentatives 
from  the  third  Congressional  district  of  Missouri. 

JOHN  T.  HAEEIS. 

JACOB  TUENEY. 

THOS.  E.  COBB. 

MILTON  A.  CANDLER. 

JERE.  N.  WILLIAMS. 

E.  JNO.  ELLIS. 
We  concur  in  conclusion. 

FEANK  HISCOCK. 

JNO.  T.  WAIT. 

J.  M.  THOENBUEGH. 

H.  PEICE. 


FORTY-SIXTH     OONaHESS 


com:m:itte1e  on  elections. 


William  M.  Springer,  of  Illinois. 
Van  H.  Manning,  of  Mississippi. 
Emory  Speer,  of  Georgia. 
Walpole  G.  Colerick,  of  Indiana. 
R.  F.  Armfield,  of  North  Carolina. 
Frank  E.  Beltzhoover,  of  Pennsylvania. 
Samuel  L.  Sawyer,  of  Missouri. 
Elijah  C.  Phister,  of  Kentucky. 


J.  Warren  Keifer,  of  Ohio. 
John  H.  Camp,  of  New  York. 
William  H.  Calkins,  of  Indiana. 
Walbridge  A.  Field,  of  Massachusetts. 
Edward  Overton,  jr.,  of  Pennsylvania. 
James  B.  Weaver,  of  Iowa. 
Alvah  A.  Clark,  of  New  Jersey. 


S.  M.  Ettkr,  Clerk. 


FORTY-SIXTH     OOXGRESS. 


JOHN  M.  RRADIiEY  vs.  WIIiLIAM  F.  SLEMOXS. 

SECO]^rD  OoNaRESsioNAL  District  of  Arkansas. 

Contestant  took  some  portion  of  Ms  testimony  more  than  forty  days  after  service  of 
contestee's  answer,  but  within  forty  days  of  the  date  when  he  commenced  taking 
testimony,  when  contestant  claims  the  time  commenced  to  run. 

Held,  That  the  time  when  contestant  may  take  testimony-in-chief  commences  to  run 
from  the  date  of  service  of  answer  of  contestee  upon  him.  The  law  furnishes  each 
party  ample  opportunity  for  taking  testimony  if  ordinary  diligence  is  used. 

The  result  of  an  election  can  in  no  manner  be  affected  by  the  failure  of  certain  town- 
ships in  the  district  to  hold  an  election  where  no  reason  is  assigned  and  shown  for 
the  failure  to  hold  such  election. 

The  circulation  of  false  and  fraudulent  posters  a  few  days  before  an  election  announc- 
ing another  person  as  the  candidate  of  a  party  for  Congress,  and  intended  to  de- 
ceive the  voters  of  that  party,  and  lessen  the  vote  which  would  otherwise  have 
been  cast  for  contestant  is  dishonorable,  and  if  the  evidence  established  the  com- 
plicity of  contestee,  and  its  effect  upon  the  voters  produced  a  result  different 
from  that  which  otherwise  would  have  occurred,  the  election  should  be  set  aside 
and  a  new  one  ordered. 

The  House  adopted  the  majority  report  March  31,  1880. 


March  8, 1880.— Mr.  Sawyer,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

REPORT: 

The  Committee  on  Elections,  to  whom  was  referred  the  contested-election  case 
of  John  M.  Bradley  vs.  Williain  F.  Slemons,  from  the  second  Congres- 
sional district  of  Arkansas,  having  had  the  same  tinder  consideration,l)eg 
leave  to  report : 

The  claim  of  the  contestant  to  the  seat  occupied  by  the  returned  mem- 
ber is  based  upon  a  variety  of  alleged  grounds,  many  of  which  are  en- 
tirely unsupported  by  any  testimony  whatever.  Before  commencing 
the  discussion  of  the  merits  of  the  controversy,  we  d,eem  it  proper  to 
express  our  disapproval  of  that  portion  of  contestee's  answer  to  contest- 
ant's notice  of  contest  which  indulges  in  personalities.  The  practice 
itself  is  unbecoming  the  dignity  of  the  House,  and  we  regret  the  neces- 
sity has  arisen  of  imposing  on  the  committee  the  duty  of  calling  atten- 
tion to  the  subject. 

The  Congressional  district  is  composed  of  twenty  counties,  in  only 
three  of  which  was  testimony  taken,  viz,  in  the  counties  of  Jefferson^ 
Chicot,  and  Hempstead,  and  at  the  very  threshold  of  our  inquiry  we  are 


BRADLEY    VS.    SLEMONS.  297 

met  with  an  objection  by  the  contestee  to  the  consideration  of  any  por- 
tion of  the  evidence  taken  by  the  contestant  in  the  counties  of  Chicot 
and  Hempstead,  tor  the  reason  that  the  forty  days  allowed  by  law  to 
contestant  in  which  to  take  testimonvin-chief  had  expired  before  the 
taking  of  evidence  in  said  Chicot  and  Hempstead  Counties  commenced. 

Protests  of  contestee  were  duly  entered  on  the  record  against  the 
taking  of  such  testimony.  Contestant,  however,  contends  that,  as  he 
commenced  taking  testimony  on  the  J 8th  day  of  February,  1879,  the 
forty  days  allowed  him  commenced  running  from  that  day,  and  this  view, 
if  correct,  will  entitle  him  to  the  benetit  of  the  testimony  taken  in  those 
two  counties. 

Section  107  of  the  Eevised  Statutes  provides  that  the  time  allowed 
for  taking  testimony  shall  be  ninety  days,  and  it  shall  be  taken  in  the 
following  order :  The  contestant  shall  take  testimony  during  the  first 
forty  days,  the  returned  member  during  the  next  forty  days,  and  the 
contestant  may  take  testimony  in  rebuttal  on/^  during  the  remaining  teu 
days  of  said  period. 

In  order  to  settle  definitely  from  what  time  the  forty  days  allowed  tv> 
contestant  in  which  to  take  his  testimony-in-chief  should  begin  to  run, 
it  is  provided  by  the  act  of  Congress  upon  the  subject  of  contested 
elections,  approved  March  2, 1875,  that  section  107  shall  be  so  coiiStrued 
as  to  require  that,  in  all  cases  of  contested  elections,  the  testimony  shall 
be  taken  within  ninety  days  from  the  day  on  which  the  answer  of  the 
returned  member  is  served  upon  the  contestant.  (Statutes  1875,  chap. 
119,  section  18.  p.  338.) 

The  answer  of  contestee  to  contestant's  notice  of  contest  was  served 
on  contestant  on  the  20th  day  of  January,  1879  (page  6).  The  time,, 
then,  for  taking  contestiint's  testiuionyin-chief  expired  on  the  10th  day 
of  March  following.  The  taking  of  testimony  by  him  in  Chicot  and 
Hempstead  Counties  was  commenced  in  Chicot  County  on  the  20th  day 
of  March,  ten  days  after  tlie  expiratn)n  of  the  time  allowed  to  him,  and 
was  closed  in  Hemi)stead  County  on  the  28th  day  of  March.  The  pro- 
visions of  the  statutes  referred  to  cannot  be  disregarded,  and  contest- 
ant, without  leave  of  the  House,  was  unauthorized  to  take  further  tes- 
tiniony-iu-chief  after  the  10th  day  of  March,  when  his  time  for  that 
purpose  expired. 

The  law  is  intended  to,  and  does,  furnish  each  party  ample  opportu- 
nity for  taking  testimony,  if  ordinary  diligence  is  used ;  and  especially 
is  this  the  case,  when  it  is  considered  that  a  party  may  take  testimony 
at  two  or  more  places  on  the  same  day.  This  wise  jH'Ovision  of  the  law 
furnishes  a  strong  reason  against  an  extension  of  time  in  ordinary  cases 
like  the  present.  (Boles  vs.  Edwards,  second  session  Forty-fifth  Con- 
gress;  Vallandigham  vs.  Cami)bell,  Thirty  fifth  Congress;  Carrigan  vs. 
Thayer,  Thirty-eighth  Congress.) 

No  application  was  made  to  the  House  by  contestant  for  an  extension 
of  time,  and  the  question  is  now  clearly  presented  whether,  without  any 
cause  whatever  being  shown  therefor,  the  testimony  thus  taken  out  of 
time  shall  be  admitted  and  cousideretl.  Another  important  fact  may 
be  considered  in  this  connection.  It  a[)pears  from  an  examination  of 
the  record  of  the  testimt>ny  that  the  time  actually  consumed  by  con- 
testant in  taking  the  entire  testimony  returned,  including  that  taken 
beyond  the  time  allowed  by  law,  was  only  eighteen  days;  thus  estab- 
lishing the  fact  beyond  controversy  that  he  could,  by  the  use  of  ordinary 
diligence,  have  taken  the  entire  testiiuijny  within  the  time  allowed  him 
by  law  without  trespassing  upon  the  time  allowed  to  contestee.  In  view 
of  these  faet«,  no  reason  exists  why  the  committee  should  consider  the 


298  DIGEST  OF  ELECTION  CASES. 

testimony  taken  in  Chicot  and  Hempstead  Counties,  or  should  recom- 
mend that  it  be  considered  by  the  House. 

The  first  point  made  by  contestant  is,  in  effect,  that  a  corrupt  con- 
spiracy was  formed  and  partially  carried  into  effect,  by  the  friends  of  the 
sitting  member,  to  regulate  and  control  the  election  in  Jefferson  County, 
at  least,  in  his  interest,  regardless  of  the  provisions  of  the  laws  of  Ar- 
kansas regulating  elections.  As  preliminary  to  an  examination  of  the 
testimony  upon  this  point,  and  as  incidentally  connected  therewith,  it 
may  be  proper  to  remark  that  the  evidence  clearly  discloses  the  follow- 
ing facts: 

For  the  purpose  of  correcting  abuses  which  had  prevailed  in  the  ad- 
ministration of  public  affairs  in  Jefferson  County  in  the  summer  of  1878 
and  several  weeks  i)rior  to  the  election  for  county  officers,  which  was 
held  on  the  8th  day  of  September  of  that  year,  two  mouths  prior  to  the 
Congressional  election,  several  prominent  men  of  both  political  parties 
held  conferences  at  different  times  and  places  with  a  view  of  presenting 
to  the  people  for  their  suffrages  a  county  ticket  composed  of  candidates 
from  each  party  best  qualified  for  the  several  positions  to  be  filled,  and 
who  would  not  be  objectionable  to  either,  which  was  termed  a  compro- 
mise ticket.  These  conferences  were  held,  as  the  testimony  discloses, 
solely  with  reference  to  a  county  ticket ;  no  allusion  whatever  being 
made  to  the  Congressional  race.  Indeed,  no  portion  of  the  entire  evi- 
■dence  refers,  even  remotely,  to  any  other  than  the  candidates  for  county 
offices,  nor  does  it  appear  that  the  Democratic  Congressional  convention 
had  then  been  held. 

The  result  of  these  several  conferences  was,  a  compromise  ticket  was 
presented  to  the  county  conventions  of  the  two  parties  and  finally  nom- 
inated by  each,  although  not  with  entire  unanimity.  An  anti-compro- 
mise ticket  was  also  nominated,  also  composed  of  candidates  from  each 
party.  The  result  of  the  election  was  in  favor  of  the  compromise  ticket. 
<See  pages  60,  62,  63,  66,  70,  76,  and  80). 

To  return  to  the  evidence  in  the  record  bearing  upon  the  alleged  con- 
spiracy under  consideration,  we  find  that  upon  cross-examination  of 
George  Haycock,  a  witness  for  the  sitting  member,  he  is  questioned  par- 
ticularly in  regard  to  the  authenticity  of  Exhibit  A,  which  is  attached 
to  his  deposition,  and  which  exhibit  is  as  follows  : 

Exhibit  A,  referred  to  in  George  Haycock's  deposition. — F.  J.  Wine.  N.  P. 

HOW  THE  SALE  WAS  MADE;. 

Colonel  Haycock.  Well,  gentlemen,  ander  the  benign  influence  of  this  back  nwm 
of  a  bar-room,  we  have  grave  matters  of  state  to  settle,  and  they  must  be  handled 
with  the  skill  of  a  diplomat  and  the  courage  of  a  Ciesar,  Major  Newman,  or  of  Gen- 
eral Grant. 

Colonel  Clayton.  Well  put  in;  a  good  amendment. 

General  Portis.  This  plan  may  require  both  the  skill  of  the  politician  and  the 
bravery  of  a  soldier,  and  Colonel  Corcoran  and  I  only  promise  the  latter.  As  to  jiull- 
ing  the  wires,  yon  gentlemen  must  do  that. 

Colonel  Prigmork.  Well,  by  God,  I  don't  propose  to  have  any  fighting  in  mine,  but 
if  you  want  any  plans  carried  out  in  a  dexterous  way,  any  midnight  watching  done, 
I  am  your  man. 

Colonel  ^VHITE.  Well,  I  want  this  thing  done  as  near  by  the  statute  as  we  can. 
But  if  there  must  be  a  break  over,  and  we,  as  high  contracting  firms,  make  agreement 
to  that  end,  then  we  must  stand  to  each  other. 

Colonel  Haycock.  Here  is  my  hand  on  that.     [They  shake.] 

Colonel  Clayton.  And  mine. 

Colonel  Prigmore.  And  mine. 

General  Portis.  And  mine. 

Major  Newman.  Aud  mine,  and  my  dainty  little  fout,  too,  and  my  heart,  too. 
£They  all  shake  and  pull  Newraau'a  big  toe.] 


BRADLEY    VS.    SLEMONS.  299 

Colonel  Haycock.  Well,  there  need  not  be  much  talk  about  it.  Colonel  Clayton, 
Priguiore,  and  Judge  Silverman  here  know  the  negro  is  uot  reliable  ;  that  we  can't 
trust  him.  Hi.s  vote  costs  more  than  the  office  is  worth.  We  want  to  devise  some 
plan  to  get  what  offices  we  do  get  for  less  price.  It  is  business  with  us.  The  truth 
is,  the  devils  should  never  have  been  allowed  to  vote  anyway.  Of  course,  I  could  not 
tell  them  so,  bur,  you  all  know  it  is  so.  Now,  take  Dawson  and  Paul  Jackoand  Fred. 
Harris;  they  are  the  most  intelligent  of  any  of  them,  and  they  are  no  more  ht  to  fill 
office  than  a  Hottentot.  We  have  let  them  till  office  because  we  had  to  keep  them  in 
good  humor,  but  if  you  Democrats  will  stand  up  to  us,  not  another  negro  shall  ever 
hold  an  office  in  this  county. 

General  Portis.  But  can  you  all  control  the  negroes  ?  Won't  they  run  a  ticket  of 
theirown  ? 

Judge  SiLVKRMAK.  Oh,  they  are  just  like  so  many  cattle  ;  take  the  herders  away 
and  they  will  stray  off  everywhere.  The  white  Radicals  have  kept  them  headed  to- 
gether. But  as  soon  as  we  quit  leading,  they  are  done  for.  You  know  that  I  am  going 
to  Markas;  I  have  got  my  pay  to  resign  ;  and  you  Democrats  can  pur  a  man  in  my 
place  to  handle  the  returns,  totix  up  the  townships,  and  appoint  your  kind  of  judges, 
and  then  you  have  got  them. 

Colonel  White.  But  what  are  you  going  to  do  with  Hugh  Kenyon,  Snyder,  Judge 
liice,  and  Vaughn? 

Colonel  Haycock.  Snyder  is  a  mere  wind  bladder,  a  gas  pipe,  a  blow  hard,  a  mere 
pygmy;  when  Clayton  and  Prigmoreaud  myself  take  our  support  from  him  he  will  go 
to  (he  devil. 

Colonel  Clayton.  I  think  so.  He  has  certainly  got  more  pay  from  the  Republican 
party  for  less  work  than  any  man  in  it. 

Colonel  Haycock.  And  as  to  Kenyon,  we  had  to  drop  him  last  election  because  he 
dill  not  subserve  the  best  party  purjtose.  Rice  and  Vaughn  are  old  party  hacks,  per- 
kttly  played  out;  and  none  of  them  can  control  a  negro. 

Judge  Silverman.  C:ui  you  all  manage  your  side  of  the  house? 

Major  Newman.  You  bet.  They  will  do  anything  General  Portis,  Colonel  White, 
ami  myself  say.  The  whole  country  x>eople  look  to  us  to  lead  them  ;  they  have  not 
feinise  enough  to  lead  themselves;  they  don't  know  anything  about  politics;  they 
would  vote  for  Bun.  Butler  if  we  were  to  tell  them  to. 

Colonel  White.  Well,  that  is  perhaps  putting  it  too  strong;  but  they  will  do  most 
anything  we  tell  them  They  look  to  Pine  Bluti"  for  advice,and  we  have  got  the  prin- 
cipal men  here  to  advise  them  when  they  go  to  them  to  accept  it,  and  we  will  see 
Jacknian,  and  Regan,  and  Bronsou,  and  Oliver,  and  men  like  them  from  the  country 
w  hen  they  come  to  town  and  have  them  fixed  up  right,  and  it  will  all  go  right.  We 
can  bamboozle  them. 

Colonel  Haycock.  Well,  now,  how  shall  we  do  itf  Let  us  proceed  to  business. 
Let  us  have  an  understanding. 

(!olouel  Prigmoke.  I  waut  for  my  part  to  keep  my  office.  That  is  what  I  want  to 
trade  for.     1  want  to  still  be  circuit  clerk. 

Colonel  Clayton.  Yes  ;  and  1  want  to  keep  my  office.  I  have  got  a  good  thing  if 
I  can  keep  it. 

Colonel  Haycock.  I  am  jjostmaster,  and  that  is  all  I  want.  But  I  want  you  all  to 
promise  me  not  to  try  to  have  me  removed. 

Major  Newman.  I  want  to  go  to  senate ;  and  I  think  I  am  the  best  man  in  the 
county  for  that  place.    I  can  help  you  all,  and  besides  I  will  give  dignity  to  the  place. 

Colonel  Hay'cock.  Not  more  than  I  did. 

Major  New.man.  Beg  your  pardon ;  I  did  not  intend  to  reflect  upon  you. 

.  Well.  I  want  Arch.Nevins  to  be  county  clerk,  and  Willis  Johnson 

county  judge.     This  will  fix  things  jnst  like  we  want  them. 

General'PoRTis.  Then  I  want  the  balance  of  the  offices  for  the  Democrats. 

Colonel  Clayton.  That  is  all  right.  Except  township  offices;  let  them  take  care 
of  themselves. 

General  Poutis.  Boys,  Fll  tell  you  one  unruly  cuss ;  that  is  John  Ellis;  and  Burton, 
and  Dave  Robinson,  and  George  Robinson,  and  a  few  more  are  about  as  bad. 

Colonel  Haycock.  Pshaw  !  They  are  not  a  bit  in  the  way.  We  will  make  them 
do  jnst  what  we  say.     We  can  buy  either  of  them  for  a  five-dollar  note. 

Colonel  Clay'ton.  Now.  wecan'get  our  convention  to  adopt  this,  and  if  we  can't  we 
will  have  to  nominate  Prigmore  and  myself  first,  and  then  we  will  break  it  up  in  an 
hour. 

Committee.  How  about  the  German  element  ?  It  might  make  them  mad.  to  be  left 
out. 

Major  Newman.  D n  the  Dutch !    Sam  Franklin  is  talked  of  for  the  senate,  but, 

pshaw,  you  don't  suppose  he  can  cope  with  me ;  besides,  the  Dutch  ain't  honest  enough 
to  be  officers.     I'll  manage  that. 

Colonel  Haycock.  So  we  all  agree.     Now,  when  shall  it  be  carried  out? 

General  Poutis.  Next  Monday  let  us  all  go  to  Little  Rock  and  have  Johnson  ap- 
pointed, Silverman's  resignation  accepted,  and  then  it  will  all  be  fix<  d. 


300  DIGEST    OF    ELECTION    CASES. 

Colonel  White.  I  cau't  go. 

Colonel  Clayton.  Nor  I ;  I  can't  leave  conrt.  • 

General  PoRTis.  Then  Major  Newman,  Colonel  Haj'cock,  Jinlge  Silverman,  and 
myself  will  go. 

Major  New.max.  That  will  do.    That  is  just  it. 

The  conclave  disbanded,  the  party  went  to  Little  Kock  ;  Silverman  resigned,  John- 
son was  appointed,  and  now  the  property  is  ready  to  be  delivered.     *     *     ^ 

recaAtulation. 

Major  Newmax.  I  am  a  politician  ;  must  win,  no  matter  how  ;  can't  fail ;  Potter 
investigation  notwithstanding. 

General  PoRTis.  Hold  on,  boys;  by  God,  we  had  better  see  these  fellows  from  the 
county  about  this  thing.  But  never  mind,  go  on  now  (got  the  judge,  that  mnch 
made). 

Colonel  Clayton.  Now.  gentlemen,  we  are  men  of  honor;  none  of  this  must  be 
divulged.  I  don't  want  the  office  longer  than  one  more  term.  I  don't  believe  in 
negro  officers;  the  white  people  ought  to  rule.  (To  Priginore. )  We  are  inseparable, 
and  this  is  our  last  chance.  (Prigmore  to  Clayton.)  Yes;  that's  so;  and.  John,  I 
haven't  had  the  office  but  ten  years. 

Colonel  White.  Since— d n  this  thing.      I  believe  Fil  wait  till  the  people  have  a 

chance  to  say  something  about  it. 

Colonel  Haycock.  Well,  here  now;  it's  all  settled. 

The  entire  testimony  relied  on  by  conte.stant  in  .-upport  of  the  truth 
of  the  statements  contained  in  the  above  exhibit  is  contained  in  the 
cross-examination  of  George  Haycock,  and  is  as  follows  (pages  82 
and  83): 

Q.  Did  you,  or  these  Republicans  with  whom  you  talked  and  were  co-operating 
in  this  matter,  have  any  conferences  with  the  Democrats  mentioned  in  counection 
with  the  compromise  ticket ? — A.  Yes;  we  had  several  talks  about  it  with  one  an- 
other at  different  times  and  places.  Sometimes  at  the  court-house ;  at  the  clerk's 
office ;  in  the  rear  room  of  Mr.  Ray's  saloon  ;  also  at  Judge  Silverman's;  but  all  these 
talks,  as  far  as  the  compromise  measure  was  concerned,  was  about  the  county  officers 
of  the  connty. 

Q.  Was  not  the  main  object  of  this  measure  to  defeat  what  you  call  the  color  line 
in  connection  with  the  county  officers? — A.  As  far  as  defeating  the  color  line  was 
concerned  it  was  not,  for  we  did  not  intend  to  defeat  any  one  as  fat  as  color  was  con- 
cerned, btit  to  elect  men  who  were  honest  and  capable  of  filling  positions. 

Q.  You  speak  of  .several  meetings  and  conferences  which  y.ii  had  in  connection  with 
compromise,  one  of  which  yon  mentioned  was  in  the  back  room  of  A.  Ray's  business 
house;  what  kind  of  a  business  house  is  that? — A.  It  is  a  saloon  in  front  and  a  res- 
taurant in  the  rear. 

Q.  Who  was  present  at  that  meeting  ? — A.  John  M.  Clayton,  G.  W.  Prigmore,  Judge 
F.  Silverman,  W.  N.  Portis,  George  Haycock,  being  myself,  C.  G.  Newman,  H,  King 
White.  N.  T.  White.  "  ' 

Q.  When  was  that  m^-eting  held? — A.  I  think  it  was  held  a  month  or  a  month  and 
a  half  previous  to  the  election. 

Q.  Who  was  the  county  judge  at  that  time  ? — A.  I  think  Judge  Silverman  was;  it 
was  about  the  time  he  was  tsilking  about  resigning  on  account  of  receiving  an  ap- 
pointment as  consul. 

Q.  Please  designate  which  of  those  named  above  were  Democrats  and  which  Re- 
publicans?— A.  John  M.  Clayton,  G.  W.  Prigmore,  .Judge  Silverman,  and  myself  were 
Republicans,  and  W.N.  Forlis, C.  S.  Newman,  H.  King  White,  and  N.  T.  White  were 
Democrats. 

Q.  Please  state  if  the  paper  here  presented  to  yon,  entitled  "How  the  sale  was 
made,"  and  which  I  now  annex  to  your  deposition,  and  marked  "Exhibit  D,"  is  not 
a  correct  statement  of  the  conference  and  meeting  referred  to  in  the  back  room  or 
restaurant  of  A.  Ray,  and  does  it  not  sub.stantially  s>  t  forth  the  spirit,  sentiment, 
language,  and  results  of  the  said  meeting  or  conference  f — A.  There  is  not  a  par.icle 
of  truth  in  it,  and  it  was  gotten  np  as  a  burlesque. 

Q.  Do  you  know  how  it  was  gotten  np? — A.  I  do  not  know  how  it  was  gotten  up, 
but  I  know  it  is  untrue  as  to  all  the  sayings. 

Q.  Were  not  all  the  parties  named  in  this  paper  as  engaging  in  it  present  at  this 
meeting? — A.  They  were  all  there. 

Q.  Did  not  Judge  Silverman  resign  at  that  time  or  immediately  after?  — A.  He  re- 
signed about  that  time. 

Q.  Did  not  General  Portis,  Major  Newman,  Judge  Silverman,  and  yourself  go  to 
Little  Rock  a  few  days  after  that  conference  ? — A.  We  did. 


BRADLEY    VS.    SLEMONS.  301 

Q.  Was  not  that  a  part  of  the  agreement  at  that  couference,  that  you  should  go? — 
A.  Xo,  sir. 

Q.  Was  it  not  stated  then  and  there  that  you  would  go  ? — A.  Judge  Silverman  had 
been  saying  for  two  or  three  weeks  prior  to  that  meeting  that  he  must  resign  to  accept 
the  appointment,  and  wished  me  to  go  with  him  when  he  went  to  Little  Koek  to  ten- 
der his  resignation  to  the  governor ;  it  was  talked  about  in  the  meeting  as  to  his  res- 
ignation, but  that  was  left  to  himself.  If  he  did  resign  1  wanted  Judge  Johnson  ap- 
pointed. 

Q.  Why  did  General  Portis  and  Major  Newman  go  f — A.  Because  they  wanted  Judge 
Jolmson  appointed. 

Q.  Was  that  understood  at  that  meeting? — A.  Nothing  more  than  if  Silverman  was 
deti-nni'ied  to  resign  they  would  use  their  inlluenc*  for  Judge  Johnson. 

Q.  I  understand  you  to  say  that  yourself,  Major  Newman,  General  Portis,  Judge 
Silverman,  all  went  to  Little  Rock  to  get  Silverman's  resignation  accepted,  and  have 
Judge  Johnson  appointed  county  judge.  Did  you  four  gentlemen  not  go  to  the  gov- 
ernor aud  get  Judge  Silverman's  resignation  accepted  and  have  Judge  Johuson  ap- 
pointed?— A.  We  (lid. 

Q.  Were  not  certain  men  designated  for  the  different  county  offices  iu  that  meet- 
ing?— A.  They  were  not. 

Q.  Were  they  not  suggested  ? — A.  Quite  a  number  of  names  were  mentioned,  but 
no  conclusion  come  to ;  the  main  object  was  to  put  Rei)ublicans  on  the  ticket  that 
were  not  obnoxious  to  tlie  Democrats,  aud  those  Democratic  candidates  who  were  not 
•obnoxious  to  the  Republicans. 

Q.  Was  not  the  name  of  W.  D.  Johnson  suggested  for  county  judge  and  Arch. 
Nevin  as  county  clerk? — A.  W.  D.  Johuson  was  mentioned  by  some  of  the  Repub- 
licans. Mr.  Henry  Young  was  mentioned  by  other  Republicans  as  being  the  man 
who  would  not  be  obnoxious  to  them,  and  Nevin's  name  and  Mr.  Currie's  name  was 
inentioDed,  aud  some  others  whom  I  do  not  recollect,  but  no  conclusion  was  ar- 
rived at. 

It  will  thus  be  seen  that  the  evideuce  relied  upon  to  establish  the 
truth  of  the  statements  contained  in  Exhibit  A  clearly  proves  their 
falsity,  aud,  iu  couuectiou  with  the  entire  evidence,  shows  that  the  sev- 
eral meetings  and  conferences  alluded  to  were  held  i^olely  for  the  purpose 
of  reformiug  abuses  and  preventing  corruptions  which  had  previously 
existed  in  the  administration  of  county  atiairs,  aud,  it  may  be  added, 
the  evidence  snws  the  final  result  to  have  been  beneficial  to  the  people 
of  Jefferson  CoBbty,  in  the  election  of  officers  who  were  honest  aud  ca- 
l)able  (page  04). 

Objection  is  also  made  by  contestant  to  the  manner  of  opening  the 
polls  in  Yaugine  Township,  the  election  of  judges  in  place  of  tho.se  who 
were  absent  (one,  as  alleged,  not  being  present  at  tlii  time  of  the  elec- 
tion), intiuiidatiou  of  voters,  and  the  manner  of  counting  the  votes. 
These  charges  thus  groui)ed  together  are  evidently  made,  not  for  the 
purpose*  of  having  the  election  iu  that  township  set  aside  (for  contestant 
notwithstaudiug,  it  may  be  safely  inferred,  received  a  majority  of  the 
votes  cast),  but  to  lay  the  foundation  for  a  claim  that  au  additional 
number  of  votes  should  be  counted  for  him.  In  support  of  these  charges 
contestant  relies  upou  the  testimony  of  A.  A.  Rogers,  which  is  as  fol- 
lows : 

Q.  State  what  you  know  of  the  manuer  of  conducting  the  said  election  in  Vaugiue 
Township,  in  this  county. — A.  I  was  in  the  court  yard,  where  the  election  of  said 
township  was  held,  early  in  the  morning  of  that  election  day,  and  saw  that  there  was 
a  feeling  of  intimidation  among  many  of  those  whom  I  met  upou  the  streets,  caused 
in  part,  as  I  supposed,  by  the  arrest  of  a  United  States  supervisor  of  election  in  an  ad- 
joining township,  who  was  under  arrest  and  in  the  hands  of  an  officer  upon  or  near 
the  court-yard.  Colonel  Bradley  aud  myself  inquired  into  the  cause  of  the  arrest,  and 
receiving  no  satisfactory  answer,  repaired  to  the  office  of  the  magistrate  who  we  un- 
<lerstood  had  issued  the  warrant,  accompanied  by  the  constable  and  the  party  arrested, 
«nd  denninded  atrial;  this  was  refused;  bail  was  ottered,  aud  it,  too,  refused;  then, 
returning  to  the  court-yard,  the  hour  tor  opening  the  election  having  arrived,  we 
.sdught  entrance  to  the  court-houst^  door  where  the  election  was  to  be  held  aud  found 
the  door  locked;  we  were  followed  closely  by  a  leading  Democrat;  we  then  went  to 
The  clerk's  office  and  found  it  also  locked;  after  an  interval  of  twenty  minutes,  per- 
haps, we  retuinid  to  the  door  of  the  courthouse  aud  found  it  still  locked  ;  met  a  voter 


302  DIGEST    OF    ELECTION    CASES. 

inquiring  if  the  polls  were  open  ;  he  retired  ;  we  then  went  to  the  clerk's  office,  saw 
the  deputy  clerk  just  entering  the  door,  and  asked  him  where  the  poll-books  were, 
and  if  he  did  not  intend  to  hold  an  election;  the  same  leading  Democrat  alluded  to 
following  close  behind,  and  demanded  to  know  what  right  we  had  to  poll-books.  I 
said  none,  but  simply  wanted  to  know  if  they  intended  to  open  the  polls  and  hold  the 
election.  The  sheriff  said  that  he  had  given  the  poll-books  the  day  before  to  the 
jndges  of  the  election,  and  that  he  did  not  know  where,  the  judges  were,  and  upon  in- 
quiring from  others  I  was  told  the  judges  had  left  town. 

I  then  repaired  to  my  store;  got  pen,  ink,  and  paper  for  both  this  and  the  other 
voting  precinct  in  the  city ;  returned  to  the  court-house  and  found  a  table  where  the 
election  was  ordinarily  held  ;  returned  to  get  a  lawyer  to  see  that  the  heading  to  the 
poll-books  was  properly  made,  officers  duly  sworn,  &c.,  intending  to  have  an  election^ 
but  upon  returning  found  that  the  opposite  party  had  met  and  elected  officers,  and 
were  proceeding  to  hold  the  election,  all  the  officers  being  political  friends,  as  1  be- 
lieve, of  Mr.  Slemous.  One  of  the  judges  elected  was  not  a  bystander,  but  was  elected 
and  sent  for,  as  he  afterwards  told  me.  The  election  was  proceeded  with.  I  was  in 
the  courtyard  nearly  the  whole  day,  and  was  conversant  with  what  transpired.  The 
election,  in  my  judgment,  was  -not  a  free  or  fair  one.  Under  pretense  of  ci:iTying  a 
certain  license  question,  Bradley  tickets,  liaving  neither  license  or  no  licensd  upon 
them,  and  the  major  portion  of  Slemons's  friends  being  for  license,  the  Bradley  ticket* 
in  the  hHuds  of  several  colored  voters  were  taken  under  the  pretense  of  writing  li- 
cense under  them,  and  instead  of  making  this  pretended  change  tlie  name  of  John 
M.  Bradley  was  scratched  and  the  name  of  W.  F.  Siemens  substituted  To  this  I 
called  attention.  On  one  occasion,  whilst  standing  at  the  balloi-box  and  giving* 
Bradley  ticket  to  a  colored  friend  who  asked  for  it,  he  handed  the  ticket  to  one  of  the 
judges,  but  before  it  fairly  passed  out  of  his  hands  a  deputy  sheriff  put  a  Slemons 
ticket  iu  the  hands  of  the  judge,  took  the  Bradley  ticket,  and  the  judge  put  the 
Slemons  ticket  iu  the  box.  My  attention  being  called  to  this,  I  took  down  the  name 
of  the  deputy  sheriff;  and  seeing  me  writing  he  announced  his  name  and  told  me  to 
■write  it  down. 

About  noon,  or  a  little  after,  several  men  who  appeared  in  the  conrt-yard,  friends 
of  Colonel  Slemons,  and  in  a  very  boisterous  manner  ridiculed  and  abused  Bradley  ; 
changing  from  that,  iu  a  boisferons  way  claiming  to  be  friendly  to  Bradley  with  a 
view,  as  I  verily  believed,  to  drive  from  the  support  of  Bradley  a  large  number  of 
colored  voters  upon  the  street  who  had  not  voted.  Later,  an  assault  was  made  upon 
Bradley  directly  by  one  of  the  political  leaders  of  Mr.  Slemons,  backed  by  the  deputy 
sheriffs,  as  I  could  see,  and  others,  the  friends  of  Mr.  Slemons;  and  a  general  out- 
break was  imminent,  and  but  for  the  coolness,  forbearance,  piudence,  and  courage 
of  Colonel  Bradley  and  his  friends,  who  counseled  peace,  there-^kild  have  been  a 
serious  difficulty,  such  was  the  feeling  of  those  engaged.  Some"4BBolonel  Slemons's 
friends  interfered  ahso  in  behalf  of  law  and  order,  and  the  matter  ended.  Pending 
this  many  of  Bradley's  friends,  fearing  trouble,  left  the  court-yar«l  without  voting. 
Ju.st  before  the  polls  closed  at  this  precinct  Colonel  Bradley  and  I  repaired  to  the  other 
voting-precinct  in  the  city  to  inquire  of  the  vote  at  that  point,  and  were  met,  as  we 
thought,  in  an  insulting  way  by  one  of  the  judges,  whereupon  we  left.  During  the 
entire  day  there  seemetl  to  be  a  disposition  to  override  and  carry  the  day  without  re- 
gard to  thu  manner  of  doing  it.  Further,  there  was,  as  1  conceived,  a  disposition  on 
the  part  of  the  judges  to  unnecessarily  question  colored  voters  about  their  ages  and 
their  means  of  knowledge,  even  in  the  )>reseuce  of  their  fathers,  who  said  they  were 
voters,  and  were  willing  to  swear  it,  and  by  this  course  a  number  were  rejected  and 
denied  a  vote.  A  few  d^ys  after  the  election  a  conversation  with  one  of  the  judges 
of  the  election  held  at  the  court-house  box  in  this  township,  a  personal  friend  of 
Colonel  Bradley  and  myself,  was  had,  in  which  said  judge  of  the  election  stated  that 
they,  the  judges,  took  the  ballot-box  from  the  court-house,  where  the  vote  was  cast, 
to  the  law  office  of  Met.  F.  Jcmes,  a  political  friend  of  Colonel  Siemens,  where  the  vote 
was  counted  in  the  manner  following,  to  wit:  each  one  of  the  judges  took  out  a  hand- 
ful of  ballot«  from  the  box  and  laid  them  before  them  on  the  table  where  the  ballot- 
box  rested  and  counted  by  hundreds,  and  then  required  the  clerks  to  tally  by  the 
hundred  according  to  the  count  of  each  judge,  and  so  on  until  they  were  through. 

To  disprove  the  evidence  of  Mr.  Rogers  contestee  offers  tlie  testi- 
mony of  W.  if.  Portis  aud  George  W.  Prigmore.  Mr.  Portis  (pages  90 
and  91)  states : 

About  8  o'clock  in  the  morning  on  the  day  of  election  there  was  a  considerablo 
crowd  assembled  in  front  of  the  court-house  waiting  for  the  polls  to  be  opened.  As 
but  oneof  the  judges  who  presided  at  the  September  election  had  made  his  appear- 
ance, it  became  necessary  to  elect  two  more.  They  were  elected  from  the  crowd 
prtment  at  the  court-house.  Mr.  Sam  Franklin  was  <me,  and  a  Mr.  C.  W.  Dowell  was 
the  other,  who  were  both  present  at  the  time  of  their  election.     Then  the  polls  were 


BRADLEY    VS.    SLEMONS.  303 

opened  in  regular  form  ami  the  ballotinjj  comineuced.  As  soon  as  the  court-house 
polls  were  opened  we  proceeded  to  the  lower  jtolJ  iu  Pine  Bluff,  and  two  of  the  regu- 
lar judges  being  abseut,  two  judges  were  elected  from  the  bystanders.  Mr.  Thomas 
McGeehee  was  one  ;  I  do  not  remember  the  other.  Mr.  M.  K.  Hunter  waa  the  regular 
judge  present,  both  polls  being  opened  iu  an  orderly  and  quiet  manner. 

Qnestioti.  What  have  you  to  say  as  to  the  conduct  of  the  election  on  that  day  as  to 
its  fairness  or  unfairness? — Answer.  It  was  a  fair  election  as  faras  I  observed.  I  saw 
no  one  prohibited  from  voting  on  that  day  that  was  entitled  to  a  vote. 

Q.  What  evidence  of  intimidation  did  you  see  ? — A.  None. 

George  W.  Prigmore  (page  68)  says : 

It  was  the  most  orderly  election  in  Pine  Bluff  I  have  seen  for  seven  or  eight  years ; 
less  confusion  about  the  polls.  Slemoiis's  Democratic  friends  seemed  to  be  taking  con- 
siderable interest.  I  saw  no  one  taking  any  active  interest  for  Bradley  except  him- 
self, Mr.  Rogers,  and  perhaps  two  or  three  colored  men. 

Ad  examination  of  the  testimony  atlduced  by  contestant  upon  these 
points  exhibits  a  fuihire  to  specify  facts  tending  to  [)rove  the  charges 
alleged,  except,  perhaps,  that  portion  which  relutes  to  the  fraudulent 
changing  of  a  ticket  of  a  colored  voter  by  a  Mr.  fclelz  lin,  wliich  is  tlntly 
contradicted  by  him  (page  93),  and  that  ])ortion  which  relates  to  an  as- 
sault made  on  contestant  by  Mr.  W.  N.  Portis.  A  reference  to  the  tes- 
timony of  Mr.  Portis  (pa*e  91)  will  show  that  the  assault  was  made  iu 
couseciuence  of  insulting  language  used  by  contestant  towards  Mr.  Por- 
tis, and  that  the  next  /norning  contestant,  upon  retiection,  acknowledged 
himself  in  fault,  and  apologized  for  his  coudnct.  As  to  the  manner  of 
counting  the  votes  in  Vaugiue  Township,  it  will  be  observed  that  the 
oidy  evidence  on  thac  point  is  that  of  a  single  witness,  whose  testimony 
is  strictly  hearsay, and  which  has  been  too  often  decided  inadmissible  to 
be  now  considered  au  open  questiou.  Besides,  the  ballots  are  required 
by  the  constitutiou  of  Arkansas  to  be  numbered,  and  the  number  re 
corded  on  the  list  of  voters,  which  are  still  in  the  custody  of  the  clerk  of 
the  county  court,  in  whose  charge  they  are  placed  by  law,  after  being 
securely  envelop^l  and  sealed,  and  there  they  are  re<piired  to  remain 
four  years  unopened  except  in  case  of  a  contested  election  (constitu- 
tion of  Arkansas,  article  3,  section  3 ;  Statutes  of  Arkansas,  "  act  pro- 
viding a  general  election  law,"  i>age  100,  section  45,  page  109,  section 
91).  One  of  the  poll-books  is  required  to  be  securely  enveloped  and 
sealed  by  the  judges  of  the  election  precinct,  and  delivered  to  the  clerk 
of  the  county  court ;  the  other  is  left  iu  the  custody  of  the  judges,  free 
for  the  inspection  of  all  persons  (sections  42  and  43).  It  will  thus  be 
seen  that  every  facility  is  aftbrded  by  law  for  the  inspection  of  the  poll- 
books  and  the  examination  of  ballots,  and  a  fraudulent  count  could 
easily  have  been  detected  and  proven. 

The  same  act,  section  5,  provides : 

If  the  court  shall  fail  to  tix  a  place  at  which  elections  are  to  be  held  in  any  town 
ship,  or  to  appoint  judges  of  elections,  or  those  appointed  fail  to  act,  it  shall  be  the 
duty  of  the  sheriff  to  lix  aplace  for  holding  the  election  ;  and  the  voters  when  assem- 
bled nuiy  appoint  the  judges,  who  shall,  iu  all  respects,  perform  the  duties  of  judges 
of  election  required  by  law. 

It  thus  appear  that  the  judges  were  appointed  according  to  law;  that 
there  was  no  serious,  if  any,  intimidation.  The  polls  were  opened  and 
the  election  conducted  with  fairness  and  pursuant  to  law.  So  far  as 
the  testimony  shows,  there  was  no  unfairness  in  counting  the  vote. 
These  being  the  most  essential  requisites  of  a  fair  election,  no  cause 
thus  far  exists  for  interfering  with  the  vote  of  Vaugiue  Townshij). 

Another  charge  is  that  the  ballot-boxes  in  Pine  Bluff  and  other  pre- 
cincts iu  Jefferson  County  were  stuffed  by  the  friends  of  contestee,  and 


304  DIGEST    OF    ELECTIOX    CASES. 

thus  a  much  hirger  vote  was  counted  for  him  than  he  actually  received. 
In  support  of  this  charge  the  testimony  of  Daniel  !»!.  Robinson  is  relied 
upon,  which  we  deem  proper  to  insert  in  full.  His  testimony  upon  that 
subject  is  as  follows  : 

Dax.  M.  Robixsox,  a  witness  produced  and  sworu,  testifies  as  follows : 

Question.  What  is  your  name,  age,  residence,  and  occupation? — Answer.  My. name 
is  Dan.  M.  Eobinson  ;  am  aged  twenty-four  years;  reside  in  Pine  Bluti',  and  am  a 
printer. 

Q.  How  long  have  you  resided  in  the  city  of  Pine  Bluff,  in  the  county  of  Jefferson, 
Arkansas  ? — A.  About  sixteen  years. 

Q.  In  what  business  were  you  engaged  in  the  mouth  of  November,  1878,  and  on  the 
5th  day  of  that  month,  the  day  of  the  last  Congressional  election  ? — A.  I  was  working 
in  the  Press  office  of  Major  Newman,  in  Pine  hlnfi",  commonly  known  as  the  news- 
paper office  of  the  Pine  Bluff  Press;  was  working  as  a  printer  on  that  day. 

Q.  State  whether  or  not  you  know  of  any  election  tickets  having  beeu  printed  at 
that  office  on  that  day  with  the  name  of  W.  F.  Siemens  thereon  for  Congress  of  this 
di.strictf — A.  Yes,  sir. 

Q.  Give  as  near  as  you  can  the  words  printed  on  those  tickets. — A.  To  the  best  of 
my  recollectiou  it  was  this:  "For  Congress  in  the  second  district,  Hon.  W.  F.  Sle- 
in<ms.     Against  license." 

Q.  How  many  of  those  tickets  were  printed  ? — A.  There  were  between  tliree  and 
four  thousand. 

Q.  At  what  time  during  that  day  were  those  tickets  printed  ? — A.  Those  I  saw 
were  printed  between  half-past  5  and  6  o'clock  in  the  evening  of  that  day. 

Q.  Do  you  know  who  got  said  tickets  from  the  printing  office  ? — A.  I  can't  say.  I 
saw  Col.  George  Haycock,  Maj.  \V.  N.  Portis  folding  up  some  of  the  tickets  on  the 
press. 

Q.  State  all  you  know  about  the  printing  and  distribution  of  those  tickets, — A.  At 
that  time  I  was  workinjj  for  Major  Newman  in  the  Pine  Bluff  Press  office.  He  gave 
uie  a  ticket  to  set  up — the  ticket  I  have  above  described;  I  worked  off  one  thousand 
and  was  sent  to  the  rear  of  the  office  by  Mr.  Ryan,  the  foreman  of  the  Press  office. 
Markey  Burnatt  took  my  place  at  the  job-press  where  the  tickets  were  being  printed. 

Q.  How  long  did  Marcus  Burnatt  work  at  the  printing  of  said  tickets? — A.  I  left 
at  6  o'clock  p.  m.,  and  he  was  still  working  there. 

Q.  Where  is  Marcus  Burnatt  now? — A.  I  think  he  is  in  Philailelphia,  Pa. 

Q.  Do  you  know  who  brought  the  job  in  question  to  the  office,  and  who  corrected 
the  proof  ? — A.  I  don't  know  who  brought  the  job  to  the  office,  but  Major  Portis  and 
Col.  George  Haycock  corrected  the  proof. 

Q.  Did  you  leave  said  printing  office,  and  Burnatt  engaged  in  printing  said  tickuts, 
before  or  after  sundown  of  that  day  ? — A.  After  sundown. 

Q.  ^tate  whether  or  no  the  parties,  to  wit,  George  Haycock  and  W.  N.  Portis,  were 
folding  up  some  .of  the  tickets  alluded  to  above  before  or  after  sundown  ?-^A.  After 
sundown,  just  as  I  was  leaving  the  office. 

Q.  State,  if  you  know,  who  the  said  George  Haycock  and  W.  N.  Portis  supported  in 
the  said  Congressional  election. — A.  I  can  only  say  that  according  to  my  best  belief 
that  they  supported  W.  F.  Slemons. 

Q.  Can  you  give  the  politics  of  the  Pine  Bluff  Press? — A.  Democratic  at  the  mast- 
head. 

Q.  Do  you  know  of  any  circulars  having  been  printed  at  tliat  olfice  within  four 
weeks  previous  to  the  date  last  mentioned,  which  circulars  announced  John  A.  Will- 
iams as  a  candidate  for  Congress  from  this  district  at  said  election  ? — A.  I  do  not,  sir. 

Q.  Did  you  see  W.  F.  Slemons  at  the  Press  office  at  any  time  within  a  week  or  two 
before  the  election  ? — A.  Yes,  sir  ;  I  saw  him  there  probably  a  half  dozen  times. 

Cross-examined  by  Col.  Met.  L.  Joxe.s  : 

Q.  Who  put  vou  on  the  job  of  printing  those  tickets  on  the  5th  of  November, 
1878  ?— A.  Maj.  C.  G.  Newman. 

Q.  What  directions  did  he  give  you  ? — A.  None  at  all,  only  to  set  up  the  job. 

Q.  Who  was  in  the  office  while  you  were  setting  the  job  up  ? — A.  The  regular  men 
who  worked  there. 

Q.  Please  name  them. — A.  Sam  Ryan,  Arthur  Murray,  Marcns  Bernath,  Joe  Markum, 
Ambrose  Lynn. 

Q.  Did  these  men,  including  ilr.  Ryan,  the  foreman,  know  that  you  were  setting 
up  ttiis  job  ? — A,  Don't  know  whether  they  did  or  not ;  suppose  Mr.  Ryan  did, 

Q.  Was  it  regarded  as  a  confidential  joi)  ?— A.  All  jobs  are  confidential  when  not 
otherwise  ordered  in  a  printing  office. 

Q.  Was  this  job  put  under  any  particular  secret  instnictions  ■? — A.  Not  that  I  know 
of— ouiv  the  secrets  that  bind  us  tojrether. 


BRADLEY    VS.    SLEMONS.  305 

Q.  At  what  time  was  that  job  brought  to  the  office  T — A.  It  was  brought  there  somo 
time  about  1  or  2  o'clock. 

Q.  Who  brought  it  ? — A.  Can't  tell  you,  air. 

Q.  To  whom  was  the  job  delivered  ? — A.  Don't  know,  air. 

Q.  How  do  you  know  when  it  waa  brought? — A.  Major  Newman  handed  it  to  me. 

Q.  What  directions  did  he  give  you  ? — A.  He  told  me  to  set  the  job  up. 

Q.  Did  he  say  when  he  wanted  it  finished  ? — A.  Said  he  wanted  it  done  some  time 
that  evening. 

Q.  What  time  did  you  set  it  up  * — A.  About  4  o'clock. 

Q.  What  time  did  Haycock  and  Portis  read  the  proof? — A.  Aa  I  waa  going  oat  the 
backdoor.     I  think  it  was  a  quarter  or  half  past  4  o'clock. 

Q.  Did  you  come  back  after  you  went  out  of  the  back  door? — A.  Yea,  air. 

Q.  How  many  of  these  tickets  did  you  strike  oft'? — A.  A  thousand. 

Q.  Where  did  you  go  then  ? — A.  Went  in  the  back  part  of  the  oftice. 

Q.  What  did  you  do  there  ? — A.  Set  up  some  time  type  for  the  paper,  cleaned  up 
"  pi,"  and  two  or  three  more  things. 

Q.  Where  did  you  go. then? — A.  Then  I  went  home,  out  of  the  front  door. 

Q.  What  time  did  you  go  home  ? — A.  Six  o'clock. 

Q.  Where  were  the  tickets  when  you  went  home  ? — A.  Part  of  them  were  laying  oa 
the  press,  and  the  boya  were  printing  them  when  I  went  home. 

Q.  How  many  were  worked  oft'  when  you  left  ? — A.  About  a  thousand. 

Q.  Did  you  see  anything  more  of  the  tickets? — A.  No,  air. 

Q.  What  liad  you  been  doing  before  you  went  to  the  Preaa  office  ? — A.  C'au'tt^ll  you, 
sir.     About  three  weeks  before  that  I  had  been  working  at  the  Republican  office. 

Q.  What  was  the  polities  of  the  Republican  office? — A.  Independent  Greenback. 

Q.  What  waa  your  politics? — A.  Democratic. 

Q.  Did  you  not  go  i-o  Little  Rock  in  July  aa  a  representative  from  Jeft'erson  County 
to  a  supposed  Greenback  convention  ? — A.  1  did  not. 

Q.  Did  you  go  to  Hot  Springs  aa  such  ? — A.  I  did  not.  I  went  to  the  press  conven- 
tion, and  in  company  with  Major  Newman,  who  was  editor  of  the  Pine  Bluff  Press, 
who  was  and  is  a  Democrat. 

Q.  While  at  Little  Rock,  was  there  a  Greenback  meeting  held? — A.  Not  to  my 
knowledge. 

Q.  Did  you  send  John  M.  Bradley  the  following  telegram,  to  wit :  "  Greenback  con- 
vention harmonious,  and  all  for  you  "  ? 

(This  question  waa  objected  to  by  E.  W.  Martin,  for  couteatant,  upon  the  goands 
of  irrelevancy  and  not  responsive  to  the  examination-in-chief,  but  doea  not  object  to 
ita  being  answered.) 

A.  I  did  not. 

Q.  Who  did  the  Republican  office  support  for  Congress  ? — A.  John  M.  Bradley. 

Q.  Whose  election  did  you  advocate  ? — A.  I  did  not  advocate  anybody.  I  voted  for 
W.  F.  Siemens. 

Q.  Have  you  any  knowledge  to  what  use  these  tickets  were  put  ? — A.  No  personal 
knowledge. 

Q.  Do  you  know  that  they  were  ever  taken  from  the  office  ? — A.  I  do  not. 

Q.  Do  you  know  for  what  purpose  they  were  ordered? — A.  I  do  not. 

Q.  Was  the  Press  office  being  run  on  the  day  of  the  election  ? — A.  I  think  it  was. 

Q.  Are  you  sure  that  Ryan,  vhe  foreman,  knew  of  the  printing  of  those  tickets  ? — 
A.  I  suppose  he  did.     He  was  around  there  and  saw  me  setting  them  up. 

Q.  Are  you  sure  that  Major  Newman  gave  you  the  job  ? — A.  I  have  already  testified 
to  that  fact. 

Q.  Are  yoji  sure  that  Haycock  and  Portis  read  the  proof? — A.  Only  this :  They  said 
it  waa  all  right.  They  were  standing  over  the  job  after  some  of  them  were  struck  oft", 
when  they  aaid  "  It  is  all  right." 

The  foregoing  testimony  of  Mr.  Robinson  is  all  tbat  is  offered  by  con- 
testant in  support  of  the  charge  under  consideration. 

George  Haycock,  one  of  the  persons  mentioned  by  Mr.  Robinson  in 
his  testimony  as  engaged  in  correctiug  the  proof  and  folding  the  tickets 
as  late  as  half  past  4  or  a  quarter  past  4,  testifies  as  follows : 

Q.  I  see  in  the  testimony  of  Dan  M.  Robinson,  examined  for  contestant,  that  he 
alludes  to  a  ticket  transaction,  and  says  that  you  had  connection  with  it.  I  will  read 
you  a  copy  of  his  testimony  to  see  what  you  have  to  say  about  it.  (Conteatee  here 
read  copy  of  his  testimony.) 

(Question  objected  to  by  attorney  for  contestant  for  the  reason  that  this  mode  of 
examinatiou  is  conceived  to  be  improper.) 

A.  The  morning  of  the  election,  after  the  polls  had  opened,  I  discovered  the  ticket* 
of  Mr.  Slemons  had  not  printed  on  them  ■•for  or  against  license."     I  went  to  General 

H.  Mis.  58 20 


306  DIGEST    OF    ELECTION    CASES. 

• 

Portis,  as  I  tiiiderstood  he  had  charge  of  Colouel  Sletuons's  tickets  for  distribution,  and  . 
asked  him  if  he  would  have  auy  objection  to  having  printed  on  them,  or  getting  out 
other  tickets  for  Slemons  with  the  words  "for  license"  printed  on  them,  if  we  de- 
frayed tlie  expense  of  the  same.  I  then  went  to  Mr.  Eay  and  Mr.  O'Connell  and  Mr. 
Brock  way,  and  they  contributed  money  to  have  some  tickets  struck  oft".  I  then  went 
uj)  to  the  printing  oflSce  and  had  a  number  stricken  olf.  I  never  handled  or  dis- 
tributed any  of  the  tickets.  Parties  wanting  tickets  of  that  kind  during  the  day  I 
sent  them  to  the  printing  oftice  for  them.  I  also  got  a  few  slips  printed  with  the" 
words  "for  license"'  on  them,  to  be  pasted  on  the  tickets  that  had  not  these  words 
upon  them.  I  was  not  at  the  printing  office  or  near  the  printing  office  after  3  o'clock 
in  the  afternoon. 

Q.  Do  you  know  what  time  these  tickets  were  printed  ? — A.  I  went  to  the  printing 
office  between  9  and  10  o'clock  in  the  morning,  and  ordered  the  tickets  printed.  I 
went  back  between  lU  and  11  o'clock,  and  some  of  tlae  tickets  which  I  had  ordered 
were  printed.  I  left  word  that  if  auy  one  called  for  these  kind  of  tickets  for  distribu- 
tion to  let  them  have  them. 

Q.  Is  that  all  the  tickets  you  had  anything  to  do  with? — A.  That  is  all  the  tickets 

I  had  anything  to  do  with. 

'  Q.  Why  were  yourself,  Ray,  O'Connell,  and  Brockway  interested  in  having  "for 
license  "  on  the  tickets  ? — A.  Because  we  were  engaged  in  the  liquor  trade  ;  that  was 
the  day  prescribed  for  the  local-option  election. 

Q.  You  state  in  your  direct  examination  that  you  gave  an  order  to  have  tickets 
•printed  with  the  words  "for  license"  on  them,  and  that  you  went  there  between  £► 
and  10  o'clock  in  the  morning  and  left  the  order  and  went  back  between  10  and. 

II  o'clock  and  found  some  of  the  tickets  were  printed,  and  state  you  never  handled 
or  distributed  any  of  the  tickets,  and  left  the  printing  office,  and  did  not  return  there 
aifter  3  o'clock  in  the  afternoon;  were  you  there  after  11  o'clock  on  that  day? — A.  I 
think  I  went  up  there  after  that  time,  but  not  after  3  o'clock  of  that  day. 

Q.  Were  the  tickets  printed  when  you  were  there  the  last  time  on  that  day  ?— A. 
There  were  some  printed.  I  did  not  take  the  interest  in  looking  after  the  tickets  after- 
giving  the  order,  for  when  I  came  down  town  I  found  a  number  had  been  writing  on 
the  bottom  of  the  ticket  the  words  "for  license,"  and  some  of  the  parties  interested 
in  voting  for  license  thought  they  would  make  their  tickets  answer  the  purpose,  but 
I  did  send  parties,  or  inform  interested  parties,  that  I  had  left  the  order  for  the  tickets 
to  be  printed,  and  if  they  wanted  them  to  send  after  them. 

Q.  How  many  tickets  did  you  order  printed  ? — A.  I  don't  know  the  number.  I  left 
five  dollars  to  pay  for  the  printing. 

Q.  What  arrangement  had  you  for  distributing  these  tickets? — A.  I  had  left  word' 
■with  Ray,  Mr.  Brockway,  and  Mr.  O'Connell  where  they  were.  I  made  no  other 
arrangements. 

Q.  Were  these  tickets  ever  distributed  ? — A.  I  do  not  know. 

W.  N.  Portis,  another  of  the  persons  ineutioned  iu  the  testimony  of 
Mr.  Robinson  as  connected  with  the  ordering  andfokliug  tickets  at  the 
late  hour  ineutioned,  testifies  as  follows  : 

Q.  state  the  particulars  of  the  tickets  struck  off"  at  the  Press  office  for  you  on  the 
day  of  the  election  ? — A.  There  being  a  great  many  tickets  destroyed  during  an  elec- 
tion here,  we  have  generally  had  a  large  number  ot"  tickets  struck  off";  and  during  thfr 
day  of  the  election  my  attention  was  called  to  the  fact  that  no  tickets  were  struck  olf 
with  "for  or  against  license  "  on  them.  I  told  Mr.  Haycock  to  go  amongst  the  saloon- 
men  of  the  town  and  get  up  a  collection  and  have  a  large  number  of  tickets  struck  otf 
with  the  words  "  For  license  "  on  them  ;  I  also  went  to  the  office  to  see  that  it  was 

Eroperly  done ;  afterwards  I  found  out  that  they  were  destroying  the  tickets  in  the 
ouses  at  which  they  were  left  and  defacing  them  ;  I  told  him  that  probably  we  had 
better  have  more  of  them  struck  off";  do  not  know  whether  he  did  or  not. 

Q.  What  time  did  you  get  last  tickets  from  Press  office  on  that  day  ?— A.  About  4 
o'clock  ;  don't  remember  the  exact  time  ;  they  were  destroying  them,  and  we  would 
send  and  get  them. 

C.  G.  Xewmau,  proprietor  of  the  Press  office,  and  another  of  the  per- 
80U8  mentioned  by  Mr.  Kobinsou  in  connection  with  the  printing  of  the 
tickets,  testifies  as  follows  : 

Q.  I  notice  in  the  testimony  of  Dan.  M.  Robinson,  taken  for  the  contestant,  that  he 
alludes  to  the  printing  of  some  tickets,  on  the  day  of  the  Congressional  election,  at 
your  office  ;  if  yon  remember  anything  of  the  printing  of  said  tickets,  state  it  fully. — 
A.  There  were  no  tickets  printed  in  my  office  after  noon  on  the  day  of  the  Congres- 
sional election,  that  I  know  of,  whatever;  I  have  no  recollection  of  giving  Robinson, 
any  ticket  to  print  at  all.     Mr.  S.  C.  Ryan  was  the  foreman  of  the  office,  and  I  always 


BRADLEY    VS.    SLEMONS.  307 

turn  over  work  that  I  receive  to  hira,  if  present :  if  not  present,  I  turn  it  over  to  the 
foreman  of  the  news  department,  Mr.  Arthur  Murray,  who  has  been  with  me  for  many 
years.  But  Mr.  Ryan  was  at  the  office  during  the  workiu]^  hours  of  the  day  men- 
tioned. Colonel  Haycock  did  give  mo  an  order  for  some  tickets  with  Slemous's  name 
on,  and  at  the  bottom  were  the  words  "  For  license."'  He  paid  me  for  the  tickets, 
stating  at  the  same  time  that  the  managers  who  had  had  Slemons's  tickets  printed 
had  overlooked  the  liquor-license  question,  and  he,  being  a  liquor  dealer,  felt  inter- 
ested in  getting  the  voters  to  vote  for  license. 
And  further  deponent  saith  not. 

All  examinatiou  of  the  entire  testimony  on  this  paint,  when  submitted 
to  the  well-known  rules  for  testing  its  weight  and  conclusiveness,  clearly 
shows  that  not  the  slightest  pretense  exists  in  support  of  the  theory 
contended  for  by  contestant.  The  object  in  having  the  tickets  printed 
is  fully  and  satisfactorily  explained ;  the  time  they  were  printed  is  .ilso 
shown,  and  any  suspicion  that  might  be  created  by  the  testimony' of  Mr. 
Robinson  that  they  were  printed  or  used  for  an  illegal  purpose,  is,  we 
think,  dispelled  by  the  testimony  of  Haycock,  Portis,  and  Newman. 
Besides,  if  a  su.«picion  really  existed  that  any  ballot-box  contained  more 
votes  for  contestee  than  were  actually  polled,  the  ballots  and  poll-books, 
so  far  as  the  testimony  shows,  are  still  in  existence,  in  charge  of  the 
proper  officers  ;  and  an  examination  and  comparison  would  have  readily 
tested  the  truth  or  falsity  of  contestant's  charge.  The  weight  and  force 
of  the  testimony  given,  Ave  think,  imposed  that  duty  upon  contestant. 
It  will  be  observed  contestant  claims  he  was  the  choice  of  the  Repub- 
lican and  Greenback  parties,  and  received  their  full  vote  in  the  district, 
and  particularly  in  the  county  of  Jetferson,  and,  therefore,  there  must 
have  been  a  fraudulent  counting  of  the  ballots,  as  the  returns  show  he 
received  a  smaller  vote  than  that  conceded  to  the  Republican  party 
alone ;  and  hence  it  is  insisted  he  shoiddbe  credited  with  the  full  Repub- 
lican vote  cast  at  previous  elections.  It  is  hardly  necessary  to  say  that 
no  warrant  exists  for  such  a  claim,  and  if,  under  any  circumstances,  it 
could  be  maintained,  a  brief  examination  of  the  facts  elicited  by  the  tes- 
timony will  show  his  claim  to  be  based  on  false  premises. 

All  the  witnesses  agree  that  a  very  small  vote  was  polled  throughout 
the  district,  some  estimating  it  between  one-half  and  two-thirds  of  a  full 
vote ;  that  great  apathy  existed  among  the  people ;  no  extended  can- 
vass had  been  made ;  few  public  meetings  held ;  no  excitement  or  en- 
thusiasm prevailed ;  that  the  previous  county  election  in  Jefferson 
County  had  its  influence  in  the  Congressional  election,  many  Republi- 
cans having  supported  contestee  who  voted  with  the  Democrats  at  the 
previous  election,  in  support  of  the  compromise  ticket.  Contestant  was 
not  the  nominee  of  the  Republican  party,  and,  while  canvassing,  de- 
nounced both  the  Republican  and  Democratic  parties,  asserting  that  he 
belonged  to  neither,  and  while  witnesses  for  contestant  declare  their 
belief  that  he  received  the  vote  of  the  Republican  party,  not  one  haz- 
arded the  assertion  that  a  full  vote  was  cast,  but  venture  the  opinion 
that  upon  a  full  vote,  a  fair  election,  aud  a  proper  count,  contestant 
would  receive  the  Republican  vote,  while,  on  the  other  hand,  it  is  in 
evidence,  by  both  Democrats  and  Republicans,  that  many  prominent 
and  leading  Rei)ublicans,  their  names  lieiug  given,  warmly  supported 
contestee ;  that  contestant  was  obnoxious  to  a  considerable  portion  of 
the  Republican  party. 

It  seems  hardly  probable  from  these  facts,  and  the  additional  one  as 
testified  to,  that  the  Democratic  majority  in  the  district  at  a  previous 
election  for  governor,  upon  a  test  vote,  was  about  2,500  (page  95),  that 
contestant  would  receive  the  full  strength  of  a  party  he  openly  de- 
nounced, and  to  which  he  denied  allegiance. 


308  DIGEST    OF    ELECTION    C;ASKS. 

We  append  the  teMtiinony  of  H.  King  White  (pagjes  90  and  07)  npon 
this  point,  as  it  is  more  full  than  tliat  of  any  other  witness,  and  clearly 
states  the  causes  which  contributed  to  the  result: 

Q.  Taking  the  Republican  strength  us  a  basis  of  Jeffereon  County,  is  there  any  rea- 
son why  John  M.  Bradley  should  claim  the  usual  Republican  majority  there  f — A.  There 
■was  none  ;  on  the  contrary,  a  great  many  of  the  prominent  Rei)ublicaii  leaders  of  the 
county  were  openly  pronounced  against  hiui. 

Q.  Taking  the  certitied  vote  for  Congress  at  that  election,  showing  1,570  for  Bradley 
aud  1,189  for  Slemons  in  that  county,  would  you  deduce  from  it  any  evidence  what- 
ever, from  your  knowledge  of  Bradley's  strength  and  iurtuence,  of  any  unfairness  in 
favor  of  Slemons  as  against  Bradley  ? — A.  1  would  not ;  aud  I  ascribe  that  result  to  the 
following  reasons :  The  only  approach  to  anything  like  a  full  vote  iu  any  of  the  voting 
Iireciucts  in  the  county  was  at  the  Vaugine  Township  boxes.  The  falling  off  at  the 
other  precincts  was  more  than  an  average  of  one-half  as  compared  with  the  Septem- 
ber election,  and  almost  entirely  of  Republican  votes,  Slemons  receiving  at  nearly 
©very  precinct  the  full  party  vote,  and  iu  many  iustances  more  than  the  party  vot«. 
I  calculate  that  there  were  '2,00i^  Rebublicau  votes  iu  the  county  not  offered  on  that 
day  at  all.  Never  since  the  separation  of  the  State  aud  Congressional  elections  has  the 
Republican  party  polled  its  full  strength  in  a  Congressional  election  ;  Clayton  did  not 
receive  it  in  1874,  nor  Snyder  in  le7»3. 

Q.  From  your  knowledge  of  the  strength  ofBradley  and  Slemons  in  tlie  district,  what 
do  you  think  of  the  vote  as  returned,  as  shown  by  certitied  alistract  of  same  herewith 
submitted  and  marked  Exhibit  "  A  "  for  reference  and  for  the  purpose  of  your  deixt- 
sition? 

(This  question  is  objected  to,  as  the  abstract  is  not  the  best  evidence.) 

A.  From  this  abstract  shown  me,  Bradley  polled  nearer  the  Republicau  vote  in 
Hempstead  aud  Ouachita  Couuiies;  Slemons  polled  the  fullest  Demt^cratic  vote  in 
Jefferson  and  Nevada  Counties:  the  largest  falling  off  in  the  Republican  vote  was  iu 
Chicot,  Lincoln,  and  Jefferson:  the  largest  proportionate  increase  for  Bradley  was  in 
Dorsey  County ;  the  largest  loss  for  him  was  in  Chicot  County.  The  only  gain  that 
81emM)8  makes  ia  .any  county  is  iu  Jefferson.  This  abstract  shows,  except  in  the 
instances  referred  to  in  this  answer,  a  large  falling  off  iu  every  county.  There  is  not 
a,  county  where  its  full  vot^e  was  polled  iu  that  election. 

Q.  Can  you  account  for  that  falling  ofl  *  If  8'»,  do  so. — A.  I  account  lor  that  falling 
oft  for  two  reasons;  tirst,  that  in  September,  two  months  prece«ling,  there  had  been  a 
canvass  for  State  aud  county  officers,  in  which  the  people  had  been  worked  up  to  the 
highest  pitch  of  excitement  on  account  of  local  questions,  and  when  the  reaction  .set 
in,  and  in  the  absence  of  an  active  and  vigorous  canvass  by  either  candidate  for  Con- 
gress, that  interest  was  not  awakened  to  get  out  the  full  vote ;  second,  it  was  a  general 
belief  among  Democrats  that  the  district  was  Democratic  and  that  Slemons  would  be 
elected  ;  third,  there  was  no  Republican  candidate  in  the  field ;  and,  fourth,  there  was 
no  Greenback  party  in  the  district. 

Q.  Measuring  the  returns  from  your  knowledge  of  the  district,  what  unfairness  do 
they  indicate? — A.  There  are  no  indications  of  unfairness  in  my  mind,  for  the  reason 
that  two  years  preceding  this  election,  in  the  contest  betweeu  Snyder  and  Siemens, 
when  the  issue  was  fairly  made  betweeu  the  Democratic  and  Reputilicau  parties,  Sny- 
der polling  about  2,300  majority  in  Jefferson  County  and  upwards  of  1,000  iu  Chicot, 
Slemons  still  received  about  1,300  majority  in  the  district,  and  if  the  falling  off' of  the 
Republican  vote  iu  these  two  counties  last  mentioned  is  considered,  it  is  more  than 
Slemons's  increased  majority  two  years  ago. 

Q.  In  Lincoln  County,  do  you  know  any  particular  reason  why  Bradley  did  not 
reach  the  Republican  strength  of  that  county  f— A.  I  know  that  J.  J.  Julyn,  the  county 
clerk,  and  C.  W.  Preddy,  the  county  jtidge,"  two  prominent  and  leading  Republicans 
in  that  county,  openly  espoused  the  cause  of  Slemons,  and  on  the  day  of  the  election 
•were  at  Auburn  precinct,  the  largest  Republican  polling  place  in  that  county,  and  can- 
-vassed  and  actively  exerted  themshes  to  secure  the  Republicans*  votes  for  him  at 
that  box. 

Q.  Can  yon  name  any  leading  Republicans  in  Jefferson  County  who  supported  Slem- 
ons T — A.  I  think  I  can. 

Q.  Please  do  so. — A.  Among  the  white  Republican  leaders,  George  Haycock,  the 
postmaster;  John  M.Clayton,  sheriff';  G.  W.  Prigmore,  circuit  court  clerk;  A.  E. 
JJeansly,  deputy  county  clerk  ;  Frank  Silverman,  ex-county  judge  ;  J.  F.  Vaughu,  ex- 
sheriff.  Among  the  colored  ones  there  were  so  many  that  I  remember  but  few.  Down 
;at  Victoria  Township,  where  I  was  on  that  day,  there  Taylor  Daniels,  Aaron  Ander- 
son, William  Marsh,  William  Conelly,  Jordan  Dickiuson,  Henry  Jones,  aud  a  number 
•of  others.  In  Vaugine  Township  I  was  not  present  on  the  day*of  the  election,  but  on 
the  evening  befiire  that  day  I  heard  an  expre.ssiou  of  sentiment  amongst  prominent 
colored  men,  aud  was  informed  that  they  advocated  the  election  of  Slemons  on  the 
election  day.  Prominent  among  those  I  "might  mention  D.  A.  Robinson,  Zach  Simp- 
aon,  Louis  Martin,  R.  A.  Dauran,  John  Ellis,  D.  F.  Tillman,  and  many  others. 


BRADLEY    VS     SLEMONS.  309 

Complaint  is  also  made  by  contestant  that  the  vote  of  Melton  Town- 
ship was  not  counted. 

The  testimony  shows  that  a  short  time  before  sunset,  the  time  fixed 
for  closing  the  polls,  one  of  the  judges  of  the  election,  J.  D.  Currie,  was 
threatened  with  an  arrest  by  a  United  States  deputy  marshal  unless 
the  polls  were  then  closed  and  the  votes  counted  ;  that  quite  a  number 
of  colored  men  crowded  around  the  polls,  some  with  guns  in  their 
hands,  and  others  having  them  stacked  within  a  convenient  distance,  a 
guard  being  placed  over  them  ;  that  such  was  the  demonstration  the 
judges  considered  it  unsafe  to  remain  and  accordingly  left,  the  ballot- 
box  having  been  thrown  out  to  one  of  the  colored  men,  a  supervisor  of 
the  election  for  that  precinct,  which  was  afterwards  returned  to  its  place 
upon  the  table.  After  the  judges  had  proceeded  a  short  distance  they 
concluded  to  return  and  endeavor  to  count  the  votes.  Upon  their 
return  it  was  ascertained  the  deputy  marshal  had  left,  that  the  ballot- 
box  was  in  the  possession  of  the  colored  men,  who  asserted  their  in- 
tention of  retaining  it,  and  such  was  the  excitement  it  was  believed  to 
be  unsafe  to  remain  longer,  and  the  judges  accordingly  left.  (Pages  85, 
86,  88,  and  89.)  Mr.  Xixon,  one  of  the  judges  of  the  election  at  this 
precinct,  estimates  the  vote  cast  at  about  115. 

There  is  no  pretense  that  the  election  was  an  unfair  one,  or  that  the 
voters  were  intimidated,  nor  is  there  a  particle  of  evidence  connecting 
contestee  or  any  of  his  friends  with  the  transaction.  The  county  clerk, 
Mr.  Nivens  (page  36),  testifies  that  the  ballot-box  was  brought  to  him 
by  a  United  States  deputy  marshal  securely  locked,  and  still  remains  in 
that  condition.  It  is  not  pretended  that  the  ballot-box  had  been  tam- 
pered with,  and  the  vote  could  easily  have  been  ascertained  had  the 
proper  exertion  been  made.  It  also  appears  there  were  no  returns  from 
Barraque  or  Dunnington  Townships,  the  inference  from  the  testimony 
being  that  no  election  was  held  in  either  of  those  townships,  and  no 
reason  is  assigned  for  the  failure  to  hold  an  election.  It  will  not,  how- 
ever, be  seriously  contended  that  the  result  of  the  election  can  in  any 
manner  be  affected  by  the  failure  of  these  townships  to  hold  an  election. 

In  Washington  Township  it  appears  from  the  evidence  that  an  elec- 
tion was  held,  and  that  the  judges,  while  on  their  way  with  the  ballot- 
box  to  make  return,  were  assaulted  by  masked  men  and  the  ballot-box 
was  taken  from  them.  It  does  not  appear  who  those  men  were,  nor 
what  their  party  affiliations,  nor  can  any  presumption  arise  from  the 
relative  strength  of  the  political  parties  to  which,  if  to  either  party, 
those  desperadoes  belonged,  as  the  testimony  shows  (page  192)  that  the 
strength  of  the  Democratic  and  Republican  parties  in  that  precinct  was 
about  equal.  Hence  neither  party  can  be  held  responsible  for  the  dis- 
graceful and  criminal  act,  nor  can  the  result  be  in  any  way  affected. 

We  come  now  to  the  consideration  of  the  most  important  point  made 
by  contestant  in  his  brief  and  argument,  the  circulation  of  false  and 
fraudulent  posters  in  Chicot  County  a  few  days  before  the  election,  an- 
nouncing John  A.  Williams,  a  well-known  Republican,  as  the  candidate 
of  that  party  for  Congress  in  that  district.  The  object  was  evidently  to 
deceive  the  Republican  party  in  that  county,  and  thus  induce  that  vote 
to  be  cast  for  Williams,  and  to  lessen  the  vote  it  was  supposed  would 
otherwise  have  been  cast  for  contestant.  It  was  a  shallow  device,  dishon- 
orable to  those  engaged  in  the  transaction ,  and  deserves  the  emphatic  con- 
demnation of  every  friend  of  free  and  fair  elections;  and  if  the  testimony 
was  sufficient  to  establish  the  complicity  of  contestee  with  an  act  so  dis- 
honorable, and  we  were  satisfied  that  its  effect  upon  the  voters  produced 
a  result  different  from  that  which  otherwise  would  have  occurred,  we 


310  DIGEST    OF    ELECTION    CASES. 

would  not  hesitate  to  recoinniend  that  the  election  be  set  aside  aud  a 
new  one  ordered. 

Tbe  evidence  upon  this  jioint  is  substantially  that  there  were  printed 
at  the  office  of  the  Pine  Blutt'  Press,  which  sui)ported  contestee  in  the 
Cong:ressioual  canvass,  a  number  of  posters  or  circulars,  without  au- 
thority, announcing  John  A.  Williams  as  the  Republican  candidate  for 
Congress,  and  urging-  the  ])arty  to  rally  to  his  sui)port.* 
^  These  posters  were  left  at  the  Planters'  House,  in  the  city  of  Pine  Bluflf 
(at  which  house  contestee  was  at  the  time  a  guest),  for  a  friend  and  sup- 
porter of  contestee.  On  the  Wednesday  before  the  election  contestee 
and  one  Dawson,  who  circulated  these  posters  in  Chicot  County,  were 
seen  conversing  together  at  the  depot  a  Ifew  minutes  prior  to  the  depart- 
ure of  Dawson  on  his  mission.  The  subject  of  their  conversation  is  not 
revealed  by  the  evidence,  nor  is  there  sufficient  to  connect  the  con- 
testee with  the  transaction.  Samuel  C.  Eyan,  foreman  in  the  Pine 
Bluff  Press  office,  states  his  belief  that  H.  King  White  directed  the 
printing  of  the  posters,  and  that  the  original  was  in  his  handwrit- 
ing (i)age  30).  Mr.  White  states  (page  100)  that  he  has  no  recollection 
of  ordering  the  printing  of  the  posters;  that  he  never  saw  but  one  copy, 
and  that  was  at  the  Press  office ;  that  he  does  not  know  who  wrote  the 
original;  did  not  see  the  same  delivered  to  the  printer,  and  does  not 
remember  any  conversation  with  contestee  upon  the  subject ;  but  had  an 
indistinct  recollection  of  having  had  a  conversation  with  Dawson,  but 
cannot  give  the  details. 

It  is  contended  by  contestant  that  the  conclusion  is  irresistible,  from 
the  evidence,  that  contestee  was  a  party  to  this  dishonorable  transaction. 
The  evidence  of  ]Mr.  White,  above  recited,  must,  we  think,  satisfy  every 
reasonable  mind  that  contestee  and  White  had  no  conversation  together 
upon  the  subject;  and  if  contestee  knew  of  the  printing  and  circulation 
of  the  posters  it  is  to  be  inferred  alone  from  the  fact  that  he  was  a  guest 
at  the  Planters'  House  when  the  circulars  were  delivered  there  from  the 
printing-office,  and  the  further  fact  that  he  and  Dawson  were  seen  cou- 
vei'sing  together  at  the  depot  just  prior  to  the  departure  of  the  latter 
on  his  way  to  Chicot  County.  We  submit  that,  in  the  absence  of  direct 
testimony-  implicating  contestee,  the  circumstances  detailed  are  not  of 
sufficient  weight  to  warrant  the  inference  contestant  draws  from  them. 

But  let  us  pursue  the  subject  a  little  farther  and  learn,  if  we  can,  what 
was  the  probable  effect  produced  upon  the  voters  of  Chicot  County,  and 
in  doing  this  we  shall  embrace  the  testimony  taken  out  of  time,  aud  to 
the  admission  of  which  objection  was  made,  remarking,  however,  that 
notwithstanding  contestee,  in  his  oral  argument  before  the  committee, 
waived,  as  far  as  he  was  able  to  do,  all  objection  to  its  consideration, 
the  people  of  the  district  have  interests  and  rights  which  cannot  be  thus 
taken  from  them.  If,  as  is  so  strongly  contended,  contestant  was  the 
acknowledged  candidate  of  the  Republican  party  in  the  entire  district, 
and  the  cordial  support  of  the  party  had  been  decided  upon,  it  seems 
hardly  probable  that  so  transi)arent  a  trick  could  have  had  any  decided 
influence  in  perplexing  or  confusing  any  considerable  numberof  voters, 
especially  as  the  announcement  of  Williams  as  a  candidate  of  the  party 
emanated  from  a  single  individual,  unauthorized  by  any  position  he  held 
to  speak  for  the  party,  aud  as,  in  the  only  county  where  the  announce- 
ment was  made,  it  was  at  once  denounced  as  a  fraud,  and  as  two  of 
contestant's  witnesses  state  it  was  so  used  as  to  advance  the  interest  of 
contestant. 

"We  assume,  so  far  as  the  testimony  shows,  that  Dawson  alone  gave 
currency  to  the  announcement,  as  he  circulated  the  posters,  which  were 


BRADLEY    VS.    SLEMONS.  311 

-aided  by  a  letter  written  by  him  to  oue  Holland,  and  wLicli  is  as  fol- 
lows : 

LuxA  Laxdixg,  Ark., 

Xovember  2,  1878. 
Dear  IIollaxd:  Ou  the  eve  of  the  election  the  Repuhlicaus  have  concluded  to 
bring  out  a  candidate.  The  circulars  and  tickets  will  speak  for  themselves,  I  send 
you.  I  am  sick  and  will  take  hoat  to-night  for  Arkapolis,  otherwise  I  most  certainly 
should  have  come  to  the  village.  Do  all  you  can.  We  think  Bradley  has  made  split 
enough  by  proper  work  to  get  our  men  in.  Regards  to  all.  Do  all  you  can.  Would 
like  to  havt-  seen  you.  Come  up  soon  as  iiossible. 
Yours,  as  ever, 

RICH.  H.  DAWSON. 

John  E.  Bradley,  a  son  of  contestant,  the  first  witness  introduced  on 
this  jubject,  and  to  whose  testimony  the  objection  above  mentioned 
does  not  apply,  says  he  found  the  printed  posters  in  Arkapolis,  Chicot 
County,  and  was  advised  they  were  circulated  by  Dawson  ;  that  he  ar- 
rived in  the  county  ou  Wednesday  night,  and  left  the  next  Sunday 
morning  before  the  election ;  that  he  distributed  tickets  on  behalf  of  his 
father;  aiul  that  he  denied  the  validity  of  the  posters  while  in  Chicot 
County.  It  therefore  appears  the  antidote  so  quickly  followed  the  poison 
that  no  serious  effect  could  have  been  produced. 

H.  W.  Graves,  a  witness  for  contestant,  says  he  was  in  the  southern 
part  of  Chicot  County  most  remote  from  Pine  Bluff  ou  the  day  of  the 
election  (where  it  is  to  be  presumed  the  injury  to  contestant  would  have 
been  the  greatest),  and  that  the  posters  and  printed  tickets  with  the 
name  of  Williams  upon  them  led  to  confusion,  and  were  the  means  of 
keeping  a  great  many  Eepublicaus  from  the  polls;  that  no  votes  were 
there  cast  for  Williams,  and  witness  asserted  his  belief  that  the  posters 
^innouncing  Williams  as  a  candidate  were  a  fraud  (page  43),  and  were  so 
generally  regarded  by  the  Eepublicaus.  On  cross-examination  he  states 
a  very  small  vote  was  i)olled  at  the  election  ou  Xovember  5,  1878 ;  that 
Bradley  in  July  made  the  only  s])eech  in  Chicot  County,  nor  were  there 
any  public  gatherings  in  regard  to  this  special  purpose  (the  Congres- 
sional election) ;  that  the  Reintblicans  of  Chicot  County  are  mostly  of 
the  laboring  class,  and  from  August  to  November  are  mostly  confined 
to  their  crops.  He  further  states  that  the  use  he  made  of  these  posters 
had  an  intluence  for  Bradley. 

Georye  T.  Wilkinson,  a  witness  for  contestant,  states  there  was  a 
marked  indifierence  by  the  people  generally  of  Chicot  County  as  to  the 
result  of  the  late  Congressional  election  up  to  a  late  hour,  and  that  the 
increased  interest  at  this  late  hour  was  shown  by  the  Republicans. 

S.  H,  Holland  testifies  also  that  the  posters  had  a  tendency  to  con- 
fuse the  voters,  and  prevented  quite  a  number  from  voting. 

This  evidence  fails  to  satisfy  us  that  the  circulation  of  the  posters  pro- 
duced any  considerable  effect  upon  the  voters ;  certainly  not  to  the  ex- 
tent of  i)reventing  any  great  number  from  voting.  The  general  apathy 
and  indifference  to  the  result,  testified  to  by  contestant's  witnesses, 
clearly  and  satisfactorily  indicate  the  reason  for  the  smallness  of  the 
vote,  and,  in  connection  with  the  testimony  of  other  witnesses  heretofore 
alluded  to,  afford  the  only  satisfactory  answer  to  the  question  why  con- 
testant, claiming  to  be  the  Rei)ublican  candidate,  received  so  cold  a  .sup- 
port from  the  party.  The  total  vote  received  by  Williams  was  cast  for 
him  in  Chicot  County  and  reached  the  number  of  ninety. 

Suppose  we  assume  (which  is  by  no  means  certain)  that  the  ninety 
votes  cast  for  Williams  would  otherwise  have  been  given  to  contestant. 
We  have  no  means  of  computing  the  number  who  were  so  much  cou- 


312  DIGEST  OF  ELECTION  CASES. 

fused  as  to  prevent  them  from  voting  for  contestant,  as  the  testimony 
aflFords  no  light  whatever  upon  the  subject.  It  is  entirely  a  matter  of 
conjecture,  a  mere  guess,  as  liable  to  be  wrong  as  right,  and  in  view  of 
this  state  of  the  evidence  contestant  insists  it  is  the  duty  of  the  com- 
mittee to  find  that  the  confusion  of  the  voters  was  so  great  as  to  pre- 
vent 1,1565  Republicans  from  voting  for  him  who  would  otherwise  have 
done  so,  which,  added  to  the  vote  he  claims  he  should  have  received  in 
Jefferson  and  Hempstead  Counties,  would  be  sutificient  to  overcome  the 
majority  returned  for  contestee  ;  not  only  that,  but  to  count  for  him  a 
number  of  votes  that  were  never  cast  sufficient  for  the  purpose,  and  to 
accord  to  him  the  seat  now  occupied  by  the  sitting  member. 

We  now  come  to  the  testimony  taken  in  Hempstead  County,  which  it 
will  be  remembered  is  subject  to  the  same  objection  heretofore  men- 
tioned. The  evidence,  however,  shows  (pages  ")7,  58)  that  the  judges  of 
the  election  were  not  present  at  polling  place  No.  2  in  Ozan  Township, 
and  that  the  voters  there  assembled  erroneously  concluded  there  could 
be  no  election ;  that  350  voters,  with  tickets  for  contestant  in  their  hands, 
expressed  a  desire  to  vote  for  him ;  that  at  Saline  precinct  the  polls  were 
not  opened  for  the  same  reasons;  that  204  voters,  having  tickets  for  con- 
testant, expressed  their  wish  to  vote  for  him.  making  554  votes  which 
contestant  contends  should  be  counted  for  him. 

We  concede  there  may  be  circumstances  un<ler  which  a  legal  voter 
being  deprived  of  the  privilege  of  casting  his  ballot,  it  may  nevertheless 
be  counted.  Judge  McCrary,  in  liis  work  on  elections,  page  99,  says: 
"  To  require  each  voter  belonging  to  a  class  of  excluded  voters  to  go 
through  the  form  of  presenting  his  ballot,  and  having  a  separate  ruling 
in  each  case,  would  be  an  idle  and  useless  formality.'"  But  the  present 
class  is  not  of  the  character  entitling  their  votes  to  be  counted.  The 
voters  assembled  at  the  two  precincts,  in  the  absence  of  the  judges  of 
election,  as  has  been  shown,  could  have  elected  judges  and  proceeded 
with  the  election.  It  was,  partially  at  least,  their  own  neglect,  arising 
perhaps  from  an  ignorance  of  the  law,  which  prevented  an  election  being 
held  in  each  of  the  precincts  named. 

No  fraud,  intimidation,  or  other  misconduct  being  allegptd  or  shown, 
preventing  the  holding  an  election,  if  the  voters  in  the  absence  of  the 
regularly  appointed  judges  fail  to  avail  themselves  of  the  privileges  the 
law  affords,  their  votes  cannot  be  counted. 

Assuming  the  testimony  taken  in  Chicot  and  Hempstead  Counties, 
and  to  which  objection  was  made,  to  have  been  properly  taken,  we  now 
l)ropose  to  make  a  statement  of  the  vote,  as  liberal  as  can  possibly  be 
claimed  for  contestant  upon  consideration  of  the  entire  testimony,  and 
upon  the  premises  laid  down  by  him  ;  not,  however,  conceding  the  cor- 
rectness of  his  premises  or  the  conclusions  deducible  therefrom. 

Suppose,  then,  we  concede  to  contestant  700  additional  votes  in  Vau- 
gine  Township,  which  is  a  large  estimate  even  ui)on  his  own  assump- 
tion, and  also  the  entire  vote  cast  in  Melton  Township  and  not  counted, 
without  conceding  a  single  vote  to. contestee,  and  also  600  additional 
votes  in  Chicot  County,  including  the  90  votes  cast  lor  Williams,  and 
assuming  that  they  would  have  been  cast  for  contestant  except  for  the 
circulation  of  the  false  posters  announcing  Williams  as  the  candidate 
of  the  Republican  party,  and  also  the  554  votes  in  Hempstead  County 
at  the  two  precincts  in  Saline  and  Ozan  Townships,  where  no  election 
was  held,  assuming  that  554  legal  voters  at  those  precincts  would  have 
voted  for  contestant,  and  that  not  a  vote  would  have  been  cast  for  con- 
testee, and  the  result  will  be  found  still  showing  a  considerable  majority 
for  contestee,  as  will  appear  from  the  following  statement : 


BRADLEY    VS.    SLEMONS.  313 

Majority  returned  for  contestee 2, 827 

Additional  votes  for  contestant  in  Vaugine 70(1 

Additional  votes  for  contestant  in  Melton 115 

Additional  votes  for  contestant  in  Chicot  County 6(K> 

Additional  votes  for  contestant  in  Hempstead  County 554 

1,969 

Majority  still  reinaiiiing  lor  coutestee 858 

No  calculation  we  can  make,  based  upon  the  testimony,  even  admit- 
ting that  to  M'hich  objection  is  made,  will  warrant  the  conclusion  that 
contestant  is  entitled  to  the  seat  now  occupied  by  the  sitting  member. 
We  therefore  are  of  the  opinion  that  the  contestee  is  entitled  to  re- 
tain the  seat  he  occupies,  and  recommend  the  passage  of  the  following 
resolution : 

Resolved,  That  William  F.  Slemons  is  entitled  to  retain  the  seat  he 
now  occupies  as  Representative  from  the  second  Congressional  district 
in  the  State  of  Arkansas  in  the  Forty-sixth  Congress. 
All  of  which  is  respectfully  submitted. 

SAM'L  L.  SAWYER. 
WILLIAM  M.  SPRmGER. 
WALPOLE  G.  COLERICK. 
F.  E.  BELTZHOOVER. 
ALYAH  A.  CLARK. 
EMORY  SPEER. 
E.  C.  PHISTER. 
R.  F.  ARMFIELD. 
VAN  H.  MANNING. 

We  concur  in  the  conclusions  of  law  above  set  forth,  and  also  in  the 
conclusion  as  to  the  right  of  the  sitting  member  to  hold  his  seat. 

W.  H.  CALKINS. 
E.  OVERTON,  Je. 
W.  A.  FIELD. 
J.   WARREN  KEIFER. 
JOHN  H.  CAMP. 


Mr.  Weaver  submitted  the  following  as  the 

VIEWS    OF   A    MINORITY: 

February  24,  1880. 

I  cannot  agree  with  the  report  made  by  the  majority  of  the  committee^ 
for  the  following  reasons : 

First.  The  evidence  taken  in  Chicot  and  Hempstead  Counties  wa* 
taken  after  the  forty  days  from  the  service  of  contestee's  answer  on  the 
contestant  had  expired,  but  no  protest  was  entered  or  made  by  con- 
testee, so  far  as  it  ai)pears  in  the  record,  until  the  depositions  had  all 
been  taken,  signed,  and  certified.  Contestee  appeared  and  cross-exam- 
ined the  witnesses  without  making  objection.  He  entered  his  objection 
just  as  the  depositions  were  ready  to  be  sealed  and  transmitted.  I 
submit  to  the  House  whether  contestee,  by  his  appearance  and  cross- 
examination,  without  objection,  did  not  waive  all  right  to  object  to  the 
testimony  on  this  ground. 

Second.  1  submit  to  the  House  whether,  upon  the  whole  evidence,  it 
does  not  appear  that  there  were  such  fraudulent  practices,  intimidations^ 


3J4  DIGEST    OF    ELECTION    CASES. 

and  criminal  means  resorted  to  by  the  contestee's  political  friends  as  to 
render  uncertain  and  doubtful  tbe  result  of  said  election:  and  whether 
right,  justice,  a  due  regard  for  law,  order,  and  the  purity  of  the  ballot- 
box,  as  well  as  for  the  protection  of  the  people  of  said  district,  do  not 
demand  that  the  seat  of  contestee  be  declared  vacant  and  a  new  elec- 
tion held  in  conformity  to  law.  Tf  the  House  shall  take  this  view  of  tbe 
case,  I  respectfully  submit  the  following  resolution  for  its  adoption : 

Resolved^  That  the  seat  now  occupied  by  William  F.  Siemens  as  a 
member  ot  Congress  from  the  second  Congressional  district  of  the  State 
of  Arkansas  in  the  Forty-sixth  Congress  be,  and  the  same  hereby  is, 
declared  vacant. 

Respectfully  submitted. 

J.  B.  WEAVER. 


BISBEE    VS.    HULL.  315 


HORATIO   BISBEE,  JR.,  vs.  IS^OBLE  A.  HUIili. 

Second  Congressional  District  of  Florida. 

lu  this  case  the  State  cnnvassiug  board  rejected  the  vote  of  a  couuty  ou  the  ground 
that  oue  preciuct  had  made  no  returns. 

Held,  That  the  vote  of  a  poll  having  V)eeu  ascertained  indisputably  it  must  be  counted. 
In  a  contest  before  the  House  of  Representatives  the  vote  shown  by  an  unassailed 
return  cannot  be  rejected  on  the  ground  of  a  failure  of  some  other  body  to  can- 
vass it. 

Where  duly  certified  copies  of  returns,  signed  by  all  the  officers  of  the  election,  per- 
fect in  fonn,  clear  and  explicit  in  the  statement  of  votes  cast,  are  put  in  evidence, 
they  are  by  law  the  primary  legal  evidence  of  the  votes  cast,  and  unless  assailed 
are  conclusive. 

A  certificate  of  election  made  in  obedience  to  a  writ  of  mandamus  has  the  same  legal 
force  as  in  anv  other  case. 


Tbe  House  adopted  the  report  January  22.  1881. 


January  IS,  1881.— Mr.  Keifer,  from  tbe  Committee  ou  Elections, 
submitted  the  followiug 

BEPOBT: 

Th  ee  07i  Elections,  to  ichom  teas  referred  the  contested-election 

coHe  of  Horatio  Bi^be€,jr.,  against  Isohle  A.  Hull,  of  the  second  Congres- 
sional district  of  the  State  of  Florida,  respectfully  report : 

That  the  second  Congressional  district  of  the  State  of  Florida  is  com- 
posed of  seventeen  counties;  that  in  the  original  canvass  by  the  State 
board  of  canvassers  of  the  votes  cast  therein  in  tlie  year  1878  for'Kep- 
resentative  to  the  Forty-sixth  Congress,  the  following  result  appeared : 

Hull.  Bisbee. 

1.  Volusia  County 367  243 

2.  Saint  John's  Couuty 5:12  346 

3.  Suwannee  Countv 540  .553 

4.  Putnam  Countv." 616  622 

5.  Orange  County 823  213 

6.  Nassau  Countv 622  769 

7.  Marion  Countv 1,008  1,190 

8.  Hamilton  Countv 609  418 

9.  Duval  Countv 1,130  2,214 

10.  Columbia  Countv 908  803 

11.  Clav  Countv...! 207  112 

12.  Bradford  Countv 697  223 

13.  Baker  Countv 256  158 

14.  Dade  Countv     47  14 

15.  ArcherCounty 1,178  1,745 

Total 9,640    9.628 

The  majority  for  .Mr.  Hull  was  thus  found  to  be  12.  The  first  canvass 
■was  made  on  December  21,  1878,  by  the  State  canvassing  board,  com- 
posed of  the  secretary  of  state,  the  comptroller,  and  the  attorney  gen- 
eral of  the  State  of  Florida  ;  and  thereupon,  ou  the  same  day,  the 
governor  of  that  State  issued  to  Xoble  A.  Hull  a  certificate  of  election. 
(Record,  i)age  500.)  By  virtue  of  this  certificate  Mr.  Hull  was  admitted 
to  a  seat  in  the  House. 


316  DIGEST    OF    ELECTION    CASES. 

It  will  be  noted  that  in  this  first  canvass  the  vote  of  only  fifteen  of 
the  seventeen  counties  was  canvassed ;  that  the  vote  of  Brevard  and 
Madison  Counties  was  not  canvassed. 

The  State  canvassing:  board  met  again  on  January  8, 1879,  and,  in 
obedience  to  the  mandate  of  the  supreme  court  of  Florida,  again  can- 
vassed the  vote  of  the  second  district  of  Florida,  and  included  in  the 
canvass  the  returned  vote  from  the  county  of  Madit^on,  no  return  being 
before  the  board  from  poll  No.  4  of  Madison  County. 

The  vote  thus  can^'assed  from  Madison  County  was,  Hull  938,  and 
''  BisbeeljlSl;  majority  for  Bisbee,  213.  The  result  of  this  second  can- 
vass showed  Mr.  Bisbee's  majority  to  be  201,  the  State  board  of  can- 
vassers having  found  and  certified  Mr.  Hull's  total  vote  to  be  10.578,  and 
Mr.  Bisbee's  total  vote  10,779.     (Record,  pages  218-220.) 

The  opinion  of  the  supreme  court  of  P'lorida,  pronounced  by  the  chief 
justice,  on  the  question  of  canvassing  the  vote  of  the  county  of  Madison, 
will  be  found  in  the  record,  page  221. 

On  this  final  canvass  Mr.  Bisbee  applied  to  the  governor  of  Florida 
for  a  certificate  of  his  election,  which  was  referred  by  the  governor  to 
the  attorney-general  of  the  State,  who,  on  January  10,  1879,  gave  his 
opinion  to  the  governor,  favoring  in  most  emphatic  language  Mr.  Bis- 
bee's right  to  such  certificate.  (Record,  page  228.)  Mr.  Bisbee's  appli- 
cation was,  however,  refused. 

The  vote  of  Brevard  County  was  never  canvassed  by  the  State  can- 
vassing board,  for  reasons  assigned  in  writing  by  the  board  on  Decem- 
ber 23,  1878.     (Record,  page  220.) 

Parties  and  their  attorneys  agree  that  poll  No.  4,  Madison  County, 
was  never  returned  to  the  county  canvassing  board,  and  hence  it  was 
never  canvassed ;  and  it  is  in  like  manner  agreed  that  the  true  vote  cast 
at  this  poll  was,  Hull  129,  and  Bisbee  186  ;  majority  for  Mr.  Bisbee,  57. 
(Contestee's  brief,  page  14;  and  Record,  pages  25,  27,  28.) 

It  is  also  proved,  as  admitted,  that  there  was  no  return  of  the  votes 
cast  at  Cow  Creek  precinct,  Alachua  County,  and  that  the  true  vote 
cast  there  was,  Hull  24,  Bisbee  2 ;  Hull's  majority,  22.  (Record,  page 
242 ;  and  contestant's  brief  in  re'ply,  page  4.) 

It  is  also  an  admitted  fact  in  the  case  that  at  Long  Swamp  or  AVhite- 
ville  poll,  Marion  County,  93  Democratic  ballots  were  fraudulently  sub- 
stituted for  a  like  number  of  Republican  ballots,  thereby  making  a  dif- 
ference in  the  vote  as  canvassed  of  186  votes  against  Mr.  Bisbee. 

The  contestee  (brief,  page  37)  agrees  that  this  fraud  was  committed, 
and  that  at  this  precinct  "  134  votes  should  be  counted  for  contestant 
and  41  for  contestee." 

The  vote  returned  and  canvassed  was  134  for  contestee  and  41  for 
contestant. 

An  agreed  statement  fixes  the  vote  of  Brevard  County  at  116  for  Hull 
and  41  for  Bisbee.     (Record,  page  487.) 

Assuming  that  the  vote  should  be  counted  as  found  and  agreed  upon, 
as  stated  above,  the  following  result  is  reached : 

HuU.  Bisbee. 

Original  canvass  of  State  board 9, 640  9, 628 

Madison  Countj'  as  canvassed  by  State  board,  by  order  of  supreme 

court 938  l.l.SG 

PollNo.4  Madison  County 126  186 

Add  for  Long  Swamp  or  Wbiteville  poll,  Marion  County 186 

Cow  Creek  poll,  Alachua  County 24  2 

Brevard  County. as  per  agreement 116  41 

Total 10,844     11,194 

Majority  for  Horatio  Bisbee,  jr 350 


BISBEE    VS.    HULL.  317 

Subject  to  a  slight  deductiou  to  be  made  for  reasons  hereinafter  ^ven, 
your  ooinmittee  And  Mr.  Bisbee's  majority  to  be  350. 
The  grounds  for  this  tiuding  will  be  very  briefly  stated. 

MADISON   COUNTY. 

Without  deciding  the  question  of  the  jurisdiction  of  the  supreme  court 
to  issue  a  mandamus  to  compel  the  State  canvassing  board  to  canvass 
the  vote  of  Madison  County,  the  committee,  on  the  returns  and  testi- 
mony now  before  it,  find  that  the  board  had  no  legal  right  to  reject  the 
returned  vote  of  the  county  in  their  first  canvass,  and  that  Mr.  Bisbee 
is  now  entitled  to  have  such  vote  counted  for  him. 

The  testimony  discloses  no  objection  to  the  returns,  and  none  is 
known  to  exist.  The  returned  vote  of  Madison  County  was  rejected  by 
the  State  canvassing  board  on  the  sole  ground  that  one  of  the  pre- 
cincts (poll  No.  4)  had  made  no  returns. 

No  case  can  be  found  where  in  a  contest  before  the  House  of  Rejjre- 
seutatives  the  vote  shown  by  anunassailed  return  has  been  rejected 
on  the  ground  of  a  failure  of  some  other  body  to  canvass  it. 

The  vote  of  poll  No.  4  having  been  ascertained  indisputably,  it  must 
of  course  be  counted. 

The  contestee  in  his  brief  also  urges  certain  special  objections  to  the 
vote  of  four  voting  precincts  of  >ladison  County  being  counted,  but 
there  is  nothing  in  his  answer  to  base  these  objections  upon,  and  the 
evidence  does  not  sustain  them. 

The  contestant  stoutly  insists  that  there  should  be  counted  for  him 
1S2  votes  not  cast  at  a  regular  i)olI  or  returned  as  required  by  law,  but 
which  were  cast  for  him  at  a  supplemental  poll  in  district  No.  1  of 
Madison  County. 

It  seems  to  be  shown  that  this  number  of  persons  did  not  get  in  their 
votes  at  this  poliing-i)lace,  for  the  alleged  want  of  time  for  the  judges 
to  receive  them.  The  committee  does  not  think,  under  the  proofs,  that 
these  votes  can  be  counted,  whatever  the  rule  of  law  may  be  in  a  proper 
case. 

Long  Sicamp  and  Cow  Greek  polls. 

No  further  remark  is  necessary  to  be  made  as  to.  the  vote  of  these 
two  precincts  in  Marion  and  Alachua  Counties.  The  fraud  in  the  former 
and  the  omission  of  the  vote  of  the  latter  are  not  only  shown  by  the 
proof,  but  both  are  admitted  facts  in  the  case. 

BREVARD  COUNTY. 

While  it  is  true  that  the  contestant  insists  that  the  vote  of  thia 
county  should  now  be  wholly  excluded,  as  it  was  by  the  State  canvass- 
ing board,  in  view  of  the  agreement  signed  by  the  parties,  and  also  on 
account  of  the  unsatisfactory  character  of  the  testimony,  the  committee 
conclude  that  the  vote  of  this  county  should  be  counted,  and  as  fixed 
in  said  agreement.     (Record,  page  487.) 

CONTESTEE'S  CASE. 

The  contestee  objects  to  counting  the  votes  in  certain  precincts  not 
already  considered. 

ALACHUA  COUNTY. 

Objection  is  made  to  counting  the  vote  of  three  precincts  in  Ahichua 
■County. 

The  names  of  and  votes  returned  from  the  three  polls  in  this  county 


318  DIGEST    OF    ELECTION    CASES. 

objected  to  are  as  follows,  according  to  duly  certified  copies  of  the  re- 
turns put  in  evidence  by  the  contestee  himself: 

Hull.  Bisbee. 

Arredondapol],(Reconl,  page  487) 60  225 

Gainesville  poll,  (Record,  page492) '2M  324 

Dudley's  Store  poll,  (Record,  page  49S) 57  278 

Total 357  827 

As  already  stated,  duly  certified  copies  of  these  returns  were  put  in 
evidence  by  the  contestee;  they  are  signed  by  all  theoflHcers  of  the  elec- 
tion; thej' are  perfect  in  form,  clear  and  explicit  in  the  statement  of 
votes  cast,  and  have  all  been  adjudged  by  the  unanimous  opinion  of  the 
supreme  court  of  Florida,  in  a  case  before  it,  to  be  good  and  valid  re- 
turns of  the  election  at  these  polls.     (17  Florida  Reports,  page  17.) 

They  are  by  law  the lirimary  legal  evidence  of  the  votes  cast,  and  unless 
assailed  are  conclusive. 

The  counsel  for  contestee,  in  their  brief,  have  not  assailed  these  re- 
turns, nor  sought  to  impeacli  them  upon  any  ground  whatever. 

They  argue  that  they  should  not  be  counted  simply  because  the  county 
canvassing  board,  in  their  first  count,  did  not  count  them,  and  that  the 
supreme  court,  under  whose  orders  they  were  canvassed,  had  not  juris- 
diction to  compel  the  board  to  canvass  them.  In  answer  to  this  it  is 
sufficient  to  suy  that  the  returns,  being  unassailed,  are  conclusive  evi- 
dence before  this  committee ;  and  it  is  our  duty  to  count  them,  no  mat- 
ter whether  the  supreme  court  of  Florida  had  or  had  not  jurisdiction  to 
order  them  counted.  The  assault  here  made  is  not  upon  these  returns, 
but  upon  the  jurisdiction  of  the  court,  which  we  are  not  called  upon  to 
maintain  or  defend.  We  therefore  overrule  this  objection  to  these  three 
polls,  and  hold  thai  the  votes  returned  from  them  must  be  counted. 

There  is  nothing  in  the  testimony  which  in  the  least  seeks  to  impeach 
the  regularity  of  these  returns. 

And  a  certificate  of  election  made  in  obedience  to  a  writ  of  mandamus 
has  the  same  leeal  force  as  in  auy  other  case.  (McCrary  on  Elections, 
sections  335,  345.) 

Besides,  the  county  canvassing  board  of  Alachua  County  were  ex- 
pressly prohibited  by  statute  from  rejecting  these  returns,  and  the 
supreme  court  of  Florida  so  held.  The  statute  of  Forida  prescribing 
the  duty  of  county  convassing  boards  reads  as  follows: 

Such  canvass  shall  be  solely  and  entirely  from  the  returns  of  the  precinct  inspectors 
in  each  election  district  as  filed  by  them  with  the  county  judge  and  clerk  of  the  cir- 
cuit court,  respectively,  and  in  no  case  shall  the  board  of  county  canvassers  change  or 
vary  in  any  manner  the  number  of  votes  cast  for  the  candidates  respectively  at  any 
of  the  polling-places  or  precincts  in  the  county,  as  shown  by  the  returns  of  the  in- 
spectors of  such  polling-places  or  precincts. 

No  language  could  be  employed  to  more  completely  prohibit  a  can- 
vassing board  from  rejecting  a  return  ;  and  consequently  the  county 
canvassing  board  had  not  jurisdiction  to  exclude  those  precinct  returns, 
and  their  action  was  null  and  void,  and  the  supreme  court  of  Florida  so 
held. 

In  his  answer  contestee  avers  that  at  Arredonda  poll  ballots  for  con- 
testant were  marked  by  the  election  officers,  and  that  the  act  of  marking 
the  ballots  rendered  them  illegal,  and  intimidated  voters  from  voting  for 
contestee.     (Record,  page  C.) 

Counsel  for  contestee,  in  their  brief,  have  not  alluded  to  this  objec- 
tion, and  it  is  therefore  fair  to  presume  that  in  their  judgment  it  could  not 
be  sustained.    In  their  oral  argument  it  was  suggested  that  if  the  con- 


BISBEE    VS.    HULL.  31^ 

testee  was  injured — tbat  is,  lost  votes  bj'  reason  of  the  marking  of  the 
ballots -the  returns  should  be  rejected,  while  they  admitted  that  the 
marking  of  the  ballots  did  not,  per  se,  vitiate  them.  We  are  unable  to 
find  any  evidence  in  the  record  that  contestee  yras  injuried  by  number- 
ing the  ballots.  He  received  the  highest  vote  that  any  of  the  local 
condidates  on  his  ticket  received  at  that  poll. 

Two  of  the  election  officers  were  sworn,  and  their  testimony  is  in  sub- 
stance that  they  numbered  the  ballots  to  correspond  with  the  numberei 
opposite  the  names  on  the  poll-list,  at  the  request  of  a  United  State^super- 
visor^  because  the  latter  thought  it  was  necessary  to  make  the  election 
legal,  and  they  did  not  know  to  the  contrary,  and  without  any  imiiroper 
motives.     (Record,  pages  231-3;  record,  pages  235-6.) 

Counsel  for  contestee  admitted  before  the  committee,  in  argument, 
that  the  ballots  were  not  marked  with  the  design  or  purpose  of  affecting 
the  fairness  of  the  election  to  the  injury  of  contestee.  It  is  evident  that 
such  was  not  their  intention.  It  does  not  appear  that  it  was  generally 
known  among  the  electors  that  the  ballots  were  being  marked,  nor  is 
there  any  evidence  this  contestee  lost  a  single  vote  by  it.  Only  one. 
voter  is  called  as  a  witness  (except  the  inspectors)  to  prove  that  the 
numbering  of  the  ballots  influenced  his  vote,  and  he  testifies  that  it  did 
not  influence  his  vote.     (Testimony  of  Aaron  Huey ,  record,  pages  483-4.) 

It  can  scarcely  be  claimed  that  the  evidence  is  sufficient  to  prove  that 
the  contestee  was  injured  by  the  numbering  of  the  ballots.  On  the  other 
hand,  the  return  shows  that  contestant  ran  behind  his  local  ticket  31 
votes  at  this  poll  (record,  page  488) ;  and  Inspector  Tucker,  a  Demo- 
crat, and  sheriff  of  the  county,  testified  that  contestant  received  less 
votes  than  the  local  ticket.     (Record,  page  233.) 

We  therefore  conclude  that  the  contestant  has  as  much  cause  to  com- 
plain of  the  numbering  of  the  ballots  as  the  contestee. 

The  same  objection  is  made  to  one  poll  in  Orange  County  by  contest- 
ant, and  testimony  was  adduced  to  sustain  it.  But  we  think  the  testi- 
mony insufficient  to  prove  that  contestant  was  injured,  if  any  person^ 
bv  the  marking  of  the  ballots  at  this  poll.  (Record,  pages  471,  609, 
610,  612.) 

This  disposes  of  Alachua  County. 

EIGHTEEN  SCATTEEINa  VOTES. 

Of  the  18  scattering  votes,  to  wit,  2  in  Duval,  3  in  Putman,  8  in 
Baker,  2  in  Columbia,  and  3  in  Suwannee,  which  it  is  claimed  should  be 
deducted  from  the  contestant's  vote,  the  committee  conclude,  without 
stating  the  reasons  at  length,  that  11  of  these  votes,  to  wit,  8  in  Baker 
County  and  3  in  Suwannee  County,  should  be  deducted  from  the  con- 
testant's vote,  and  that  the  remainder  should  be  counted. 

These  11  votes  are  rejected  on  the  ground  that  they  were  cast  bj' non- 
residents, or  non-registered  voters. 

Deducting  the  11  votes  from  the  350  majority  of  Horatio  Bisbee,  jr., 
as  already  found  by  the  committee,  reduces  his  majority  to  339,  whicli 
the  committee  finds,  from  the  whole  case,  to  be  his  majority. 

The  committee,  in  accordance  with  its  findings,  recommend  for  adop- 
tion by  the  House  the  following  resolutions  : 

(1)  Resolved,  That,  2«roble  A.  Hull  is  not  entitled  to  retain  his  seat  as 
a  member  of  the  Forty-sixth  Congress  of  the  United  States  as  a  Repre- 
sentative of  the  second  Congressional  district  of  the  State  of  Florida. 

(2)  Resolved,  That  Horatio  Bisbee,  jr.,  is  entitled  to  a  seat  as  a  mem- 
ber of  the  Forty-sixth  Congress  as  Representative  of  the  second  Con- 
gressional district  of  the  State  of  Florida. 


320  DIGEST   OF   ELECTION   CASES, 


JAMES  M'CABE  vs.  GODIiOTE  S.  ORTH. 
l^iNTH  Congressional  District  of  Indiana. 

Jfew  notice  of  contest.  The  committee,  on  showing  of  contestant,  adoi)ted  a  resolution 
granting  further  time  in  which  to  serve  notice  of  contest  and  to  i)roceed  to  take 
testimony.  This  resolution  was  not  reported  to  the  House  in  time  to  be  of  any 
avail,  and  subsequently  the  committee  recommended  that  contestant  have  leavo 
to  withdraw  his  papers. 

The  House  adopted  the  report  February  15,  1881. 


February  15,  1881. — Mr.  Calkins,  from  the  Committee  oii  Elections, 
submitted  the  following 

BEPORT: 

The  Committee  on  Elections^  to  whom  were  referred  the  papers  in  the  con- 
tested election-case  of  James  McCabevs.  Godlove  S.  Orth^from  the  ninth 
Congressional  district  of  Indiana^  having  had  the  same  under  considera- 
tion^ beg  leave  to  submit  the followiny  report: 

Your  committee,  to  whom  was  referred  the  contest  in  this  case,  re- 
port the  following  facts  to  the  House : 

Mr.  Orth  was  returned  elected  by  the  election  officers  of  the  various 
counties  comprising  said  district,  receiving,  according  to  their  returns, 
15,608  votes,  and  Mr.  McCabe,  his  principal  opi)onent  at  the  same  elec- 
tion, receiving,  according  to  their  returns,  15,510  votes. 

On  the  1st  day  of  November,  1878,  Mr.  Orth  received  his  certificate 
in  due  form  from  Hon.  James  D.  Williams,  then  governor  of  Indiana. 
Within  thirty  days  thereafter,  and  on  the  12th  day  of  November,  1878, 
Mr.  McCabe  served  a  notice  of  contest  upon  Mr.  Orth,  specifying,  as  is 
alleged,  the  grounds  of  contest  particularly,  therein.  This  notice  never 
came  into  the  possession  of  your  committee. 

On  the  5th  day  of  December  thereafter  it  is  alleged  that  Mr.  Orth 
fully  answered  each  ground  and  specification  of  contest  and  served  the 
same  on  that  day  on  Mr.  McCabe. 

It  is  alleged  by  Mr.  McCabe  in  a  memorial  presented  to  your  commit- 
tee, duly  verified  by  him,  that  he  did  not  take  any  testimony  to  support 
the  several  allegations  in  his  notice  of  contest  during  the  time  allowed 
by  law,  for  the  reason,  among  others,  that  there  was  a  contest  pending 
between  other  contestants,  which  was  in  process  of  trial  before  the 
proper  tribunal  in  the  county  of  Montgomery,  which  would,  and  which 
did,  develop  substantially  the  evidence  relied  upon  by  him  to  overturn 
the  declared  result  in  the  canvass  of  the  votes  in  the  said  ninth  dis- 
trict. He  also  alleges  that  his  little  boy  was  quite  sick  after  that,  and 
subsequently  died,  and  that  his  presence  was  necessary  at  the  bed-side 
of  his  dying  son.  He  further  alleges  in  his  memorial  that  as  early  as 
February,  1879,  he  discovered  new  evidence  which  he  alleges  tended  to 
support  an  allegation  of.  bribery  by  the  friends  of  Mr.  Orth,  which 


m'cabe  vk.  orth.  3^1 

aftected  150  votfis  who  voted  for  Mr.  (}itli,aiid  claimed  that  tlie  estab- 
lishment of  this  fact  \,ould  set  aside  the  majority  returned  for  Mr.  Orth, 
and  clearly  establish  his  right  to  a  scar  in  this  C()nj]:ress.  Tliis  i)el;itiou 
or  meniorhil  was  presented  to  your  committee  on  the  lOth  day  of  June, 
1879.  There  were  two  other  afllidavits  siibi^equently  tiled  by  Mr.  Mc- 
Oabe,  sijjned  by  Mr.  Dobblebower  and  Mr.  Paterson,  in  which  aH!(hivits 
each  of  the  affiants  testified  that,  on  information  and  belief,  facts  tending 
to  establish  the  bribery  af(uesaid  might  be  elicited  if  time  were  given 
to  take  depositions. 

In  answer  to  this  memorial,  supported  by  the  affidavits  of  Mr.  Mc- 
Cabe  and  the  tw«)  witnesses  aforesaid.  Mr.  Orth  promptly  tiled  his  owa 
affidavit  with  your  committee,  denying  generally  the  sj)ecitications  in 
Mr.  McCabe's  memorial  and  affidavit  so  far  as  it  alfected  iiis  right  to  a 
seat  in  Congress,  aiid  si)ecitically  denying  an3'  conuectiou  with,  or 
knowledge  of,  tlie  bribery  alleged  by  Mr.  McCabe.  l!iumerous  affidavits 
are  also  filed  in  supi)ort  of  Mr.  Ortii's  claim. 

An  issue  being  thus  made,  your  committee  were  called  upon  to  decide 
whether  under  the  circumstances  additional  time  should  be  given  the 
contestant  to  take  testinumy  and  the  c<»n(estee  to  rebut,  when  it  was 
decided,  on  the  L*3d  day  of  March,  1880,  to  graut  time,  and  the  follow- 
ing lesolution  was  adopted : 

liesoli'fd,  Tliiit  .lames  MeCii')e,  contesting  th<'  rif^ht  of  the  Hou.  Godlove  S.  Ortb  to 
a  seat  \u  this  House  as  a  Kfin-eseutative  from  the  iiintli  Congressional  tlistrjct  of  the 
State  of  Indiana,  be,  ami  he  is  hereby,  anthorizod  to  serve  in»on  ihe  sairl  Orth  within 
ten  (lavs  after  the  jtassage  of  this  resolution  a  particular  stateineut  of  the  grounds  of 
said  contest,  aiul  that  the  said  Orth  be,  and  he  is  hereby,  required  to  serve  upon  the 
said  McCabe  his  answer  tiiereto  in  twi-nty  days  thereafter,  and  that  both  parties  be 
anihnnzcil  and  rtMjnired  to  proceed  within  ten  da\.s  after  the  adjourunieut  of  this  ses- 
sion of  Congress  it»  t.ike  evidence  in  the  case,  in  tbe  ni.ini>er  aud  subject  to  all  pro- 
visions of  law  now  in  /orce  a]ii>lical)le  to  the  talcing  of  evidence  in  contested-election 
cases,  the  sanu*  svs  if  the  contestant  had  heretofore  proceeded  in  tiiue  to  take  evidence 
in  suj'port  of  his  claim  to  the  seat. 

By  some  inadvertence  this  resolution  was  never  reported  to  the 
House,  and  the  House  conse<piently  never  acted  tipon  it. 

No  testimony  having  been  taken  during  the  time  allowed  by  law» 
and  the  re:  olution  not  having  reached  the  House,  whereby  testimony 
might  be  taken  under  the  order  of  the  House,  the  case  again  came  up 
at  a  meeting  of  the  committee  at  this  session  of  Congress,  during  last 
December.  Your  committee  took  the  case  up  for  consideration,  and  it 
being  deemed  unnecessary  to  report  the  aforesaid  resolution  to  the 
House  for  action,  because  there  did  not  remain  sufficient  time  for  the 
taking  antl  certifying  of  testinu)ny,  or  for  the  action  of  the  committee 
of  the  House  during  the  remaining  time  of  this  Congress,  your  com- 
mittee reconsidered  its  former  action,  and,  on  the  llth  day  of  January, 
1881,  passed  the  following  resolution  : 

Etmlrt-d,  That  in  view  of  the  short  time  remaining  before  the  adjonruraent,  ami  the 
improbabiliry  of  taking  evidence  uinler  the  statute,  the  resolation  heretofore  p.assed, 
March  2.i,  Ir^tsO,  in  reference  to  the  conte.st  in  the  case  of  McCabe  »•«.  Orth,  be,  aud  is 
hereby,  rescinded,  and  the  contest  be,  aud  is  hereby,  discontinued. 

In  view,  therefore,  of  all  the  circumstances,  your  committee  recom- 
mend the  passage  of  the  following  resolution: 

Resolved,  That  the  contestant,  Janies  McCabe,  contesting  the  right 
of  the. Hon.  Godlove  S.  Orth,  from  the  ninth  Congressioual  district  of 
Indiana,  to  a  seat  in  the  Forty  sixth  Congress,  have  leave  to  withdraw 
his  papers  in  said  contest,  and  that  the  Hon.  Godlove  S.  Orth's  title  to 
his  seat  in  the  said  Congress  be,  and  the  same  hereby  is,  confirmed. 
H.  Mis.  58 21 


322  DIGEST    OF    ELECTION    CASES. 


J.  C.   HOLMES   AND  JOHN  J.    WILSON-IOWA  CONTESTED 

ELECTION. 

In  the  matter  of  J.  C.  Holmes,  claiming  a  seat  from  the 
EIGHTH  Congressional  district  of  Iowa. 

In   the   3IATTER   OF  JOHN   J.  WiLSON,  CLAIMING   A    SEAT   FROM   THE 

NINTH  Congressional  district  of  Iowa. 

Holmes  and  Wilson  presented  petitions  to  the  Honse  in  which  they  set  np  ihat  they 
were  elected  Representatives  in  Congress  from  the  eighth  and  ninth  districts  of 
Iowa,  rt-spectively,  at  an  election  held  November  5,  1878,  by  a  majority  of  the  legal 
votes  cast  at  such  election,  and  that  certificates  of  such  election  have  been  for- 
warded to  the  Clerk  of  the  House  of  Representatives.  The  petition  does  not  state 
that  any  other  person  has  been  declared  elected  at  that  or  any  other  election,  or 
that  a  certificate  of  election  had  been  granted  to  anybody  by  the  governor  of  the 
State  of  Iowa,  and  they  do  not  ask  that  the  election  of  any  other  person  may  l)e 
inquired  into. 

Held,  That  in  the  absence  of  any  ovidenc-e  of  action  on  the  part  of  the  authorities  of 
the  State  in  making  proclamation  and  giving  notice  of  the  election,  and  canvass- 
ing the  votes  after  the  election,  and  in  the  absence  of  evidence  that  it  was  geuei- 
ally  understood  that  an  election  for  Representative  in  Cungres-s  was  to  be  held  on 
that  day,  it  is  impossible  to  bold  that  either  Mr.  Holmes  or  Mr.  Wilson  had  been 
elected. 

The  House  adopted  the  majority  report  January  31,  1881. 


December  21,  1880. — Mr.  Field,  from  the  Committee  oii  Electious, 
submitted  the  following 

li  E  /'  O  li  T  : 

In  the  matter  of  J.  C.  Holmes,  claiming  a  seat  from  the  eighth  Con- 
gressional district  of  the  State  of  Iowa;  and 

lu  the  matter  of  John  J.  Wilson,  claiming  a  seat  from  the- ninth  Con- 
gressional district  of  the  State  of  Iowa. 

The  petition  of  J.  C.  Holmes,  found  on  page  1  of  the  printed  x>apers, 
sets  forth  his  claim  substantially  as  follows  : 

1st.  That  on  the  5th  day  of  aSTovember,  1878,  being  the  Tuesday  next 
after  the  first  Monday  of  November,  he  was  dul^"^  elected  a  Representa- 
tive in  Congress  from  the  eighth  Congressional  district  of  Iowa  by  a 
majority  of  the  legal  votes  cast  at  such  election. . 

2d.  That  certificates  of  said  election  have  been  forwarded  to  the 
Clerk  of  the  House  of  Representatives.    The  prayer  is : 

Your  petitioner  therefore  respectfully  requests  your  honorable  body  to  take  such 
action  as  will  give  him  his  legal  rights  as  lleprescntative  from  the  eighth  Congres- 
sional district  of  the  said  State  of  Iowa  in  the  Forty-sixth  Congress,  to  which  he  is 
entitled  by  virtue  of  an  election  hold  in  conformity  to  the  laws  of  the  United  States 
on  the  5th  of  November,  A.  D.  1878. 


HOLMES   vs.    WILSON.  323 

Tlie  petition  does  not  state  that  any  other  person  has  been  declared 
elected  at  tli-it  or  any  other  election,  or  that  any  other  election  had 
been  held,  or  that  a  certilicate  of  election  had  been  granted  to  anybody 
by  the  jjovernor  of  the  State  of  Io^va,  and  the  prayer  of  the  petition 
does  not  ask  that  the  election  of  any  other  person  may  be  inquired 
into. 

The  petition  does  not  state  that  any  rij;hts  of  Holmes  as  a  citizen  or 
voter  in  iowa  have  been  violated,  or  that  as  a  citizen  or  voter  he  has 
an.v  complaint  to  make  or  any  relief  to  ask. 

The  jjeneral  lanonufje  of  the  petition  and  papers  in  tlie  case  of  Jobu 
J.  Wilson  is  the  same  as  in  Holmes's  case;  the  petition  of  Mr.  Wilson, 
however,  also  states  that  the  Clerk  of  the  House  of  Representatives  en- 
rolled the  names  of  those  persons  who  had  the  certificates  of  the  gov- 
ernor which  were  issued  to  the  persons  who  were  chosen  at  an  election 
held  in  the  month  of  October;  the  prayer  of  this  petition  is  the  same  as 
in  the  case  of  Holmes. 

It  is  a  fact,  however,  of  which  perhaps  the  House  may  take  notice,  that 
^Ir,  William  F.  Sappaud  Mr.  Cyrus C.  Carpenter  were  elected  Representa- 
tives in  Confess  respectively  fiom  the  eighth  and  ninrh  Congressional 
districts  of  the  State  of  Iowa,  at  a  eneral  election  held  on  the  8th  day 
of  October,  1878,  being  the  second  Tuesday  of  October;  that  they  re- 
<;eived  the  certiticate  of  the  governor,  were  sworn  in,  and  now  hold 
their  seats. 

No  person  is  made  party  resi)ondent  to  the  petitions;  the  petitions 
have  never  been  served  on  any  one,  and  no  notice  of  the  petitions,  so  far 
as  a|)pear8,  was  ever  given  to  any  one  by  the  petitioners.  The  i)apers  in 
Holmes's  case  seem  to  have  been  referred  to  the  Committee  on  Elections 
A]nil  a,  1870  (Record,  April  (>,  page  27),  having  been  transmitted  b,y 
the  (Merk  to  the  Speaker,  and  by  the  Speaker  lai«l  before  the  House,  and 
by  the  House  referred  to  the  Committee  oh  Elections. 

•  When  this  reference  was  ma<le  nothing  was  said  about  the  certiGcate 
of  the  sitting  member,  and  in  the  schedule  of  papers  transmitted  no  ref- 
erence in  terms  was  made  to  such  certifittate. 

This  reference  was  made  after  the  discussion  in  the  House  on  the  me- 
morial of  John  J.  Wilson  (Record  of  March  2.>,  1879,  pages  1,  2,  3,  and 
4),  in  which  the.  cwrtiticate  of  the  sitting  member  was  excluded  from 
the  res(»lution  of  reference,  and  the  resolution  in  that  ciise  was  adopted 
in  form  as  follows  : 

liewlptd,  Tliat  the  memorial  of  John  .J.  Wilson  and  all  the  papers  in  the  lianils  of 
the  Clerk  relating  to  the  election  of  Representative  in  Congress  for  the  ninth  Con- 
gressioiial  district  of  Iowa,  on  the  5th  of  November,  iJi/S,  be  referred  to  the  Commit- 
tee on  Elcction.s  when  appoiuttid. 

The  papers  which  were  actually  transmitted  to  the  committee  and 
are  printed  contain  the  original  certificates  of  Mr.  Sapp  for  the  eighth 
district  and  of  Mr.  Cari)enter  for  the  ninth  district,  as  elected  at  a  gen- 
eral election  held  on  the  second  Tuesday  in  October. 

It  is  not  perhaps  material  to  consider  whether  these  certificates  are 
properly  before  the  committee  or  not ;  they  are  not  any  part  of  the 
pajiers  of  the  petitioners.  As  no  authority  in  either  case  was  given  to 
the  committee  to  take  testimony,  the  sole  authority  of  the  committee 
rests  on  these  references,  on  the  rules  of  the  House,  and  on  the  laws  of 
the  United  States.  There  is  no  law,  and  no  practice  of  the  Committee 
on  Elections,  as  we  understand  it,  authorizing  the  use  by  the  committee 
of  ex  parte  atKdavits  to  determine  questions  of  facts  in  deciding  the 
merits  of  an  election  case. 

Tlie  power  of  the  House  to  judge  of  the  elections,  returns,  and  quali- 


324  DIGEST  OF  ELECTION  CASES. 

ficatioiis  of  its  members  is  aini)le,  ami  it  can  proceed  in  its  own  way;  a 
committee  of  the  House  has  such  power  as  is  given  it. 

The  in)portance  of  election  cases  demanrts  that  the  testimony  should 
be  taken  on  notice  to  all  persons  interested,  with  the  rif^hton  their  part 
to  cross  examine  witnesses  and  to  exhibit  testimony  in  reply,  so  far  as 
their  riglits  may  be  affected  by  the  inquiry. 

This  may  be  done  under  or  alter  the  analojry  of  the  statute  relating 
to  contested  elections,  or  by  summoning'  witnesses  before  the  commit- 
tee, or  in  any  other  manner  the  House  may  direct. 

Kone  of  the  certificates  or  affidavits  found  in  the  ]>apers  in  a  judicial 
court  would  prove  themselves  or  be  judicially  recognized  except  the 
certificates  of  the  sitting  members. 

The  committee  sent  notice  of  the  pendency  of  these  petitions  to 
the  members  in  Congress  from  the  State  of  Iowa,  and  some  of  tliem 
appeared  specially,  without  acknowledging  by  their  appearance  that 
their  rights  could  be  determined  under  these  petitions.  The  undersigned 
agree  with  the  remainder  of  the  committee  tliat  chapter  8  of  the  Ke- 
vised  Statutes  of  the  United  States,  relating  to  contested  elections, 
Las  no  direct  application  to  a  contest  between  ])ersons  claiming  under 
elections  held  on  different  days,  and  could  only  be  made  api)licable  by 
a  resolution  of  the  House  authorizing  such  parties  to  inM)ceed  after  the 
analogy  of  the  statute  and  fixing  in  the  resolution  a  time  from  which 
the  first  thirty  days  should  begin  to  run. 

The  undersigned  think  that  the  words  "such  election  "  in  the  third 
line  of  section  105  of  the  Revised  Statutes  mean  an  election  contested, 
and  a  person  claiujingto  be  elected  on  a  subsequent  day  might  not  be 
elected  until  more  than  thirty  days  after  the  result  of  the  lirst  election 
had  been  determined,  and  might  not  be  able  under  the  statute  to  give 
any  notice  at  all;  but  they  think  that  the  provisions  of  that  chapter  or 
some  analogous  provisions  ought  in  general  to  be  made  applicable  to 
any  contest  in  which  the  rights  of  sitting  members  are  involved,  or  else 
that  the  Committee  on  Elections  should  be  authorized  to  summon  per- 
sons and  take  testimony,  with  notice  to  the  sitting  nu^mbers,  and  ])er- 
haps,  in  a  case  like  this,  to  the  State  of  Iowa,  to  appear  and  by  testi- 
mony and  arguments  be  heard.  The  petitions  in  these  cases  should 
not,  therefore,  be  dismissed  merely  because  they  do  not  conform  to  the 
statutes. 

The  agreement  of  parties  has  sometimes  been  received  as  to  disputed 
questions  of  fact,  but  it  has  always  been  held  that  this  should  be  done 
with  great  caution,  as  these  are  not  merely  contests  between  the  par- 
ties, but  the  rights  of  the  people  of  the  district  and  of  thii  State  and 
of  the  people  of  the  United  States  are  involved  and  cannot  be  agreed 
away. 

In  these  cavses  no  testimony  has  been  taken  by  the  committee ;  there 
are  no  parties  and  no  agreement  of  parties.  Certain  facts  have  been 
stated  in  argument  forand  against  the  cases  of  the  petitioners,  and  have 
been  conceded  in  aruutuent  by  counsel,  but  the  undersigned  do  not  feel 
at  liberty  to  consider  them  as  agreed  facts. 

It  was  suggested  to  the  counsel  of  the  petitioners  that  if  they  pro- 
posed to  prove  any  other  facts  than  those  set  forth  in  their  papers,  they 
should  state  them  ;  but  tliere  was  no  intimation  that  they  desired  to  offer 
evidence  of  any  other  facts  than  those  alleged  in  the  papers. 

In  determining  what  should  be  done  with  the  petitions,  the  under- 
signed were  of  the  opinion  that  the  affidavits  and  certificates  accom- 
panying the  petitions  should  be  regarded  as  offers  of  proofs ;  that  is, 
statements  by  the  petitioners  of  the  faets  which  they  propose  to  prove  ; 


HOLMES    VS.    WILSON.  325 

and  that  the  committee  should  consider  whether,  if  all  these  statements 
of  facts  were  taken  to  be  true,  the  petitions  could  be  maintained;  that 
if  they  could  not,  it  would  not  be  worth  while  to  ask  this  House  for  au- 
thority to  take  testimony  on  the  subject,  or  to  take  a:ij'  other  action 
than  to  dismiss  the  petitions.  The  statements  of  facts  in  the  case  of 
Holmes,  so  far  as  it  seems  necessary  to  state  them  for  the  proper  nu- 
derstandiujiij  of  the  House,  are  these  : 

At  an  election  held  at  Turner's  school-house,  iu  Macon  Township, 
Holmes  received  01  votes,  beinuf  all  the  votes  cast.  Tlie  polls  were 
opened  by  two  clerks  and  three  judjies  of  election,  and  one  of  the  clerks 
was  the  regular  township  clerk.  The  judges  of  electiun  denosited  the 
poll-books  with  the  county  auditor  of  Taylor  County.  The  Judges  and 
clerks  were  sworn. 

The  inference  is  that  one  of  the  clerks  and  all  the  judges  of  election 
■were  not  the  regularly  appointed  clerks  and  judges. 

At  an  election  hehl  at  Centre  school-house,  in  Buchanan  Township, 
Page  County,  opened  by  two  clerks  and  three  judges  of  election,  Holmes 
received  30  votes,  being  all  the  votes  cast. 

In  the  aftitlavit  of  Wilson,  page  4,  the  number  of  votes  is  printed  38. 

One  i)oll-book  was  returned  to  the  auditor  of  Page  County,  and  the 
same  is  annexed  to  the  papers  as  I'^xhibit  A.  The  oaths  of  the  judges 
ami  clerks  are  set  out,  and  the  inference  is  that  none  of  the  clerks  and 
judges  was  the  rejiularly  appointed  clerk  or  judge.  The  supervisors  re- 
fused to  call  a  meeting  of  the  board  to  canvass  the  votes  (pp.  0,  7). 

At  an  election  held  in  Siam,  at  the  stoie  room  of  Albert  Dyche,  Polk 
Township,  Taylor  County,  the  palls  were  opened  by  two  clerks  and 
three  judges  of  election,  who  were  sworn.  Holmes  received  37  votes 
and  W.  F.  Sapj)  1  vote,  being  all  the  votes  cast  (pp.  4,  5, 14, 15).  The 
inference  is  that  none  of  the  clerks  and  judges  of  election  was  the  regu- 
larly' appointed  clerk  or  judge.  There  is  no  statement  that  any  i)oll- 
book  was  sent  to  the  county  auditor,  but  there  is  a  statement  that  poll- 
book  marked  "  Exhibit  C  "  appears  to  be  in  the  same  condition  as  on  the 
day  when  it  was  sealed  u|>. 

At  an  election  held  in  Nebraska  Township,  Page  County,  at  the  house 
formeily  occupied  by  R.  A.  Miller  for  a  drug  store.  Holmes  received  28 
votes,  J.  H.  Chapman  received  0  votes,  W.  F.  Sapp  received  2  votes, 
blank,  1  vote — in  all,  37  votes,  being  all  the  vot€S  cast.  The  clerks  and 
judges  of  election  were  duly  sworn  and  the  ballot-box  and  poll-book  de- 
livered to  Holmes.  The  inference  is  that  none  of  the  clerks  or  judges  of 
election  was  a  regularly  ap])oin-ted  clerk  or  judge. 

It  has  been  said  that  the  inference  is  that  none  of  the  clerks  or  judges 
■was  a  reguhirly  ai)pointed  clerk  or  judge,  except  in  the  case  of  one  clerk 
iu  Macon  Township,  Taylor  County.  This  statement  has  been  made 
because  it  is  not  stated  that  they  were,  and  because  the  oaths  seem 
to  have  been  administered  on  the  5th  day  of  November,  1878,  on  which 
day  neither  the  constitution  nor  the  laws  of  Iowa  provide  for  the  regu- 
lar election  of  any  such  officers. 

Each  township  not  a  city  or  incorporated  town  has  three  trustees, 
elected  one  each  year,  at  the  general  elecjtion  iu  October,  each  trustee 
holding  for  three  years,  and  these  trustees  are  judges  of  election  in  each 
precinct  where  they  reside  ;  and  the  clerks  are  the  township  clerks,  and 
one  elector  nauieil  by  them.     (Section  000,  Code  of  lo.va,  1873.) 

But  if  the  judges  do  not  attend  tlie  election  the  electors  present  may 
appoint  judges,  and  if  the  clerks  do  not  attend  the  judges  may  appoint 
clerks.  As  the  oaths  seem  to  have  been  administered  on  the  day  on 
which  the  election  was  held,  it  has  been  inferred  that  the  clerks  and 


326  DIGEST    OF    ELECTION    CASES. 

judges  of  election,  except  one  clerk,  were  not  the  regularly  appointed 
clerks  or  judges,  but  were  ap])oiuted  on  the  day  of  election  in  November. 

The  protest  of  Holmes  addressed  to  the  Clerk  of  the  House  protests 
against  William  F.  Sapp  being  recognized  as  legally  elected  on  the  8th 
day  of  October,  1878,  and  against  his  being  placed  on  the  rolls,  and 
asks  that  Holmes's  name  may  be  placed  on  the  rolls  as  legally  elected 
ou  the  oth  day  of  November,  1878. 

The  result  is,  in  the  case  of  Holmes,  that  the  papers,  if  taken  to  be 
true  statements,  show  that  in  these  four  townships  certain  voters  got 
together  and  went  through  the  forn«s  of  an  election  for  Eepresentative 
in  Congress  ;  that  in  all  171  votes  were  cast,  of  which  Holmes  received 
162,  Sapp  2,  and  Chapman  0,  and  there  was  one  blank;  and  that  these 
votes  were  never  canvassed  by  any  State  otiicers  and  no  certificate  of 
election  issued.  In  the  Congressional  directory,  which  refers  to  the 
election  held  in  October,  Sapp  is  i)ut  down  as  receiving  lo,31o  votes, 
against  7,453  votes  for  Keatley,  Democrat,  and  7,760  votes  for  Hicks, 
Na'ioual,  in  all  30,5 "le  votes. 

It  does  not  api)earthat  the  voters  of  this  Representative  district  un- 
derstood generally  that  an  election  was  to  be  held  on  the  5th  day  of 
November,  being  the  Tuesday  next  after  the  first  Monday  of  November, 
for  Eepresentative  in  Congress,  or  that  any  attempt  would  lie  made  by 
anybody  to  hold  such  an  election  or  that  any  person  had  notice  that 
any  such  election  would  be  held,  except  the  ])ersons  voting. 

It  does  not  appear  that  the  governor  issued  liis  prodam-ition  for  any 
such  election,  which  by  section  577  of  the  code  of  Iowa  he  is  required 
to  issue  thirty  days  before  any  general  election,  "designating  all  the 
offices  to  be  filled  by  the  votes  of  the  electors  of  the  State,  or  by  those 
of  any  Congressional,  legislative,  or  judicial  district,  and  transmit  a 
copy  thereof  to  the  sheriff  of  each  county." 

It  does  not  appear  that  the  sherili'  gave  "  at  least  ten  days'  notice 
thereof,  by  causing  a  copy  of  such  proclamation  to  be  published  in  some 
newspaper  printed  in  the  county,  or  if  there  be  no  such  paper,  by  post- 
ing such  a  copy  in  at  least  five  of  the  most  public  places  in  the  county," 
as  required  by  section  578  of  the  code. 

It  does  not  appear  that  any  registry  of  voters  was  established,  or 
that  any  of  the  regularly  appointed  officers,  except  one  township  clerk, 
took  any  part  in  this  election,  or  that  the  board  of  supervisors  of  the 
county  canvassed  the  returns  and  made  abstracts  thereof,  as  provided 
in  section  635  of  the  code  of  Iowa,  or  that  any  abstracts  thereof  were 
forwarded  to  the  secretary  of  state  or  filed  by  the  county  auditor  (sec- 
tion 637  of  code),  or  that  any  canvass  was  made  by  the  executive  coun- 
cil (sections  651,  652,  code),  or  that  any  certificate  of  election  was  issued 
under  the  seal  of  the  State  (section  653  of  code).  So  far  as  appears 
this  might  have  been  an  election  held  by  a  few  persons  in  only  four 
townships,  without  any  knowledge  on  the  i)art  of  anybody  except 
themselves  that  any  attempt  to  hold  an  election  would  be  made,  and 
without  any  recognition  at  all  by  the  authorities  of  the  State. 

It  was  stated  in  argument  that  Mr.  Holmes  had  his  ballots  secretly 
printed  in  Saint  Louis,  Mo.,  and  that  the  election  was  in  fact  a  secret 
to  nearly  all  the  electors  of  the  district,  but  as  the  committee  have  not 
been  authorized  to  take  testimony,  the  undersigned  have  considered  this 
as  hearsay,  and  haxe  not  regarded  it. 

The  special  facts  distinguishing  the  case  of  Wilson  from  that  of 
Holmes  are  the  number  of  precincts  in  which  votes  were  cast  and  the 
number  of  votes  cast.  There  are  also  contained  in  the  papers  of  Wilson 
the  opinion  of  the  attorney-general  of  the  State,  of  Mr.  James  S.  Mc- 


HOLMES   vs.    WILSON.  327 

Dill,  of  Mr.  S.  .1.  Kiikwood,  of  Mr.  John  F.  Dillon,  of  Mr.  George  D. 
Perkins,  and  of  Mr.  Reuben  Noble  upon  the  question  whether  the  sec- 
ond Tuesday  in  October  or  the  Tuesday  next  after  the  first  Monday  in 
Koveniber  was  the  lejral  day  to  hold  an  election  for  Representatives  in 
Congress  in  Iowa.  These  opinions  are  all  to  the  effect  that  the  second 
Tuesday  in  October  is  the  only  legal  day  for  such  an  election. 

The  facts  in  Wilson's  case  deemed  by  the  undersigned  material  to  be 
stated  for  the  understanding  of  the  House,  if  the  statements  in  his  pa- 
pers are  taken  to  be  true,  are  these  : 

At  an  election  held  on  Call  street,  in  Heckart's  building,  Algona 
Township,  Kossuth  County,  John  J.  Wilson  received  83  votes,  Cyrus 
C.  Carpenter  received  95  votes,  in  all  178  votes,  being  all  the  votes 
cast. 

At  an  election  held  at  the  Conlon  school-house  in  Great  Oak  Town- 
ship, Palo  Alto  County,  John  J.  Wilson  received  13  votes,  being  all  the 
votes  cast. 

At  an  election  held  at  the  school-house  in  Rutland  Township,  Hum- 
boldt County,  John  J.  Wilson  received  9  votes,  being  all  the  votes  cast. 

At  an  election  held  at  Dakota  City,  in  Dakota  Township,  Humboldt 
County,  John  J.  Wilson  received  32  votes,  Cyrus  C.  Carpenter  received 
1  vote,  in  all  33  votes,  being  all  the  votes  cast. 

At  an  election  held  at  Willow  Glen  school-house,  Avery  Township, 
Humboldt  County,  John  J.  Wilson  received  19  votes,  being  all  the  votes 
cast. 

At  an  election  held  at  school-house  No.  3  in  Irvington  Township, 
Kossuth  County,  John  J.  Wilson  received  15  votes,  being  all  the  votes 
cast. 

At  an  election  held  at  Walker  school-house,  in  Lott's  Creek  Township, 
in  Kossuth  County,  John  J.  Wilson  received  10  votes,  being  all  the  votes 
cast. 

At  an  election  held  in  the  school-house  in  district  No.  4,  in  Cresco 
Township,  Kossuth  County,  John  J.  Wilson  received  25  votes. 

At  an  election  held  at  the  school-house  in  Walnut  Township,  Palo 
Alto  County,  John  J.  Wilson  received  9  votes. 

At  an  election  held  at  school-house  in  West  Bend  Township,  in  Palo 
Alto  County,  John  J.  Wilson  received  20  votes,  being  all  the  votes  cast. 

At  an  election  at  Lott's  (.'reek,  in  Humboldt  County,  John  J.  Wilson 
received  13  votes,  being  all  the  votes  cast. 

At  an  election  held  at  the  school-house  in  district  No.  2,  Vernon  Town- 
ship, Humboldt  County,  John  J.  Wilson  received  12  votes,  C.  C.  Car- 
penter 1  vote,  in  all  13  votes,  being  all  the  votes  cast. 

The  foregoing  statement  purports  to  be  certified  to  by  the  precinct 
judges  of  elections  and  attested  by  the  clerks. 

There  is  a  certificate  of  the  county  auditor  of  Kossuth  County  that 
some  packages  i)urporting  to  be  the  returns  from  Cresco,  Algona,  Lott's 
Creek,  and  Irvington  Townships,  all  in  Kossuth  County,  were  filed  in  his 
ofQce,  that  none  of  said  packages  has  been  opened,  and  that  the  board  of 
supervisors  have  not  yet  canvassed  the  returns. 

There  are  two  affidavits  of  the  votes  cast  in  Cresco  Township  and  Ir- 
vington Township,  res])ectively,  that  one  copy  of  the  returns  in  these 
townships  was  filed  with  the  township  clerk  and  one  with  the  county 
auditor,  and  one  mailed  to  Henry  Pike. 

There  is  a  certificate  of  the  county  auditor  of  Palo  Alto  County  that 
envelopes  with  the  returns  of  West  Bend,  Walnut,  and  Great  Oak  Town- 
ships were  filed  with  him,  and  the  board  of  canvassers  refused  to  recog- 
nize the  claim  to  have  the  votes  of  said  election  canvassed. 


32b  DIGEST    OF    ELKCTION    CASES. 

There  is  an  afii«lavit  of  Mr.  Al.  M.  Adams  that  the  county  auditor  of 
Humboldt  County  declined  to  sign  the  annexed  certificate  or  to  attach 
the  county  seal  thereto,  that  he  does  not  deny  that  the  facts  therein 
stated  are  true,  and  that  he  gives  as  a  leason  for  not  signiuf;  and  seal- 
ing it  that  he  does  not  think  that  the  elections  were  legal,  and  will  not 
have  anything  to  do  with  tlie  matter  in  any  way. 

The  unsigned  certificate  annexed  to  the  i)Hi)ers  is  to  the  effect  that 
enve!oi)es  ])uii)orting  to  contain  the  returns  from  Avery,  Kutland,  Hum- 
boldt, Dakota,  and  Vernon  lownships  were  tiled  with  the  auditor  and 
never  have  been  oj)ened,  and  that  the  recor<ls  of  the  board  of  suiiervi- 
sors  do  not  show  tliat  any  action  has  been  taken  thereon;  and  there  are 
the  opinions  of  gentlemen  ui)on  the  legal  day  of  election  which  have 
been  hereinbefore  staled. 

These  are  in  substance  all  the  papers  in  the  case  of  Wilson.  There  is 
nothing  to  show  that  the  judges  or  clerks  of  elections  were  the  regu- 
larly appointed  judges  or  clerks. 

If  the  statements  in  these  i)apers  are  taken  to  be  true  there  were 
votes  cast  in  twelv*;  townships  on  the  oth  of  November,  1878,  for  Repre- 
sentative in  Congress  to  the  number  of  357,  of  which  Wilson  received 
2(j0  and  Carpenter  1)7.  Jn  the  Congressional  Directory,  which  refers  to 
the  October  election,  Carpenter  is  put  down  as  receiving  10,489  votes, 
against  1,202  for  W.  H.  Browni,  Democrat,  and  12,338  votes  for  L.  Q. 
Hoggatt,  National ;  in  all  30,029  votes. 

There  is  the  same  absence  of  auj-  evidence  of  action  on  the  part  of 
tlie  authorities  of  the  State  in  nmking  proclamation  and  giving  notice 
of  the  election  and  canvassing  the  votes  cast  after  the  elections  as  in 
Holmes's  case,  and  theie  is  no  evidence  whatever  that  it  was  generally 
understood  that  an  election  for  Kepresentative  in  Congress  wasto  be  held 
on  the  5tli  day  of  November,  or  that  any  attempt  w  as  to  be  made  to  hold 
any  election  on  that  day,  or  that  it  was  known  to  anybody  except  the 
persons  voting  that  any  such  election  was  to  be  held.  The  papers  do 
show  that  the  governor  of  Iowa  was  advised  by  the  persons  named 
that  such  an  election  could  lawfully  be  held  only  on  the  second  Tuesday 
of  October. 

The  undersigned  think  that  it  is  impossible  to  hold  on  these  alleged 
facts,  if  ]iroved.  that  either  Mr.  Holmes  or  Mr.  Wilson  has  been  duly 
elected  liepresentative  in  Congress,  whether  the  Tuesday  after  the  first 
Monday  of  November  or  the  second  Tuesday  of  October  be  the  lawful 
day  for  such  an  election,  and  that  there  is  no  need  of  taking  testimony 
in  these  cas.  s,  because  the  facts  alleged,  if  proved,  would  not  entitle 
either  of  these  gentlemen  to  a  seat,  and  that  the  committee  should  be 
discharge*!  from  any  further  consideration  of  these  ]>etitions ;  and  that 
in  coming  to  this  conclusion  it  is  not  necessary  to  decide  whether  the 
authorities  of  the  Slate  were  right  or  not  in  determining  that  the  legal 
day  of  ele(!tion  was  the  8th  day  of  October,  because  if  it  be  assumed  to 
be  true  that  the  5th  day  of  November  was  the  legal  day  of  election,  the 
election  was  not  held  uiuler  the  sanction  of  the  authorities  of  the  State 
of  Iowa,  was  not  generally  known  so  far  as  appears,  and  was  not  partici- 
pated in  by  such  numbers  of  the  people  of  Iowa  that  on  any  grounds 
this  House  would  be  justified  in  declaring  Mr.  Holmes  or  Mr.  Wilson 
entitled  to  a  seat. 

These  petitions,  as  has  been  said,  cannot  be  considered  as  petitions 
of  citizens  or  voters  of  Iowa  asking  that  the  whole  election  in  Iowa  for 
Kei)resenta fives  in  Congrt'ss  in  October  should  be  declared  void. 

They  are  not  drawn  with  any  such  intention  and  pray  no  such  relief. 
So  far  as  appears,  if  Holmes  and  Wilson  cannot  be  seated  they  are  con- 


HOLMES    VS.    WILSON.  329 

tent,  as  citizens  of  Iowa,  that  the  existing  delegation  of  Iowa  should  re- 
tain their  seats. 

If  resolutions  should  be  offered  in  the  usual  form  declaring  either  Mr. 
Holmes  or  Mr.  Wilson  entitled  to  a  seat,  the  undersigned  think  that 
they  should  be  decided  in  the  negative,  and  if  resolutions  should  l)e 
offered  declaring  Mr.  Sapp  and  Mr.  Carpenter  entitled  to  their  seats, 
that  they  should  be  decided  in  tlie  aftirmalive,  because  nothing  as  yet 
has  apj)eared  to  invalidate  the  title  by  which  they  now  hold  them;  and 
that  as  a  decision  of  the  validity  of  the  election  of  Messrs.  Sapp  and 
Carpenter,  or  perhai)s  of  all  the  (lelegation  from  Iowa,  is  not  necessary, 
in  the  opinion  of  tiie  undersigned,  in  order  to  make  a  proper  disposition 
of  these  petitions,  a  decision  against  them  or  against  the  whole  delega- 
tion of  Iowa  shonkl  not  be  made  without  formal  notice  to  the  representa- 
tives of  Iowa,  and  i>erhaps  to  the  State  of  Iowa,  and  after  taking  testi- 
mony of  such  facts  and  circumstances  surrounding  the  election  on  the 
second  Tuesday  of  October  as  might  properly  be  considered  in  constru- 
ing the  statutes  and  laws  relating  to  the  legality  of  an  election  on  that 
day. 

As  other  members  of  the  committee  have  deemed  it  proper  to  express 
an  opinion  and  to  report  on  the  legality  of  the  election  held  on  the  sec- 
ond Tuesday  of  October,  the  undersigned,  although  not  thinking  that 
question  necessarily  involved  in  the  matter  before  them,  or  that  all  the 
facts  and  circumstances  pertinent  to  a  decision  have  been  established 
in  a  j)roper  manner,  deem  it  their  duty  to  submit  their  views  upon  the 
question,  so  far  as  can  be  done  from  what  appears  in  the  papers,  with 
some  reference  to  the  arguments. 

This  House  will  take  notice  that  the  Representatives  from  the  State 
of  Iowa  now  holding  their  seats  were  elected  at  a  general  election  held 
on  the  8th  day  of  October.  The  certificates  of  Mr.  Sapp  and  Mr.  Car- 
penter so  state. 

The  House,  if  it  chooses,  independently  of  the  petitions,  can  take  action 
upon  that  fact. 

It  was  stated  in  argument  before  the  committee  that  the  governor  or 
the  State  of  Iowa,  before  the  electon  in  October,  consulted  the  attor- 
ney-general of  the  State,  the  justices  of  the  supreme  court,  the  judge 
of  the  circuit  court  of  the  United  States,  and  other  lawyers  of  eminence 
upon  the  question  whether  the  constitution  of  the  State  of  Iowa  would 
need  amendment  in  order  to  change  the  day  of  election  of  State  officers, 
that  it  might  be  determined  whether  Iowa  was  within  section  6,  cha])ter 
130,  of  the  acts  of  1875  of  the  United  States,  and  that  the  opinion  of 
these  gentlemen  was  almost  unanimous  that  Iowa  was  within  the  ex- 
ception created  by  that  section.  Some  of  these  opinions  appear  in  the 
papers  in  the  Wilson  case. 

it  was  stated  in  argument  that  the  leaders  of  all  the  political  parties  in 
the  State  consulted  together  and  agreed  that  Iowa  was  within  the  ex- 
ception created  by  that  section,  and  that  the  election  could  legally  be 
held  only  in  October. 

It  was  stated  in  argument  that  the  governor,  in  good  faith,  after  in- 
structing himself  in  every  proper  way,  decided  that  the  election  could 
only  be  held  on  the  second  Tuesday  in  October,  and  issued  his  proclama- 
tion accordingly;  that  the  people  of  Iowa  fully  acquiesced  in  that  de- 
cision; that  the  election  held  in  accordance  therewith  was  held  without 
protest  from  auybody,  and  was  one  of  the  fullest  and  fairest  elections 
ever  held  in  that  State. 

That  these  facts  are  of  very  great  significance  in  determining  whether 
the  action  of  the  State  authqrities  shall  be  sustained  is  evident,  but  the 


330  DIGEST    OF    ELECTION    CASES. 

uudeisigned  doubt  wliether  they  are  properly  before  them,  although 
tliey  have  no  reason  to  believe  they  are  not  true. 

The  bona  fide  interpretation  of  the  constitution  and  laws  of  a  State 
by  the  authorities  of  a  State  who  are  charged  with  the  duty  of  inter- 
preting its  constitution  and  laws  is  certainly  entitled  to  very  great 
weight. 

It  was  the  duty  of  the  governor  to  issne  a  proclamation  thirty  days 
before  the  day  of  election  of  Representatives  in  Congress. 

If  section  25  of  the  lievised  Statutes  of  th<^  United  States  applied  to 
Iowa,  then  the  day  of  election  was  the  Tuesday  next  after  the  first 
Monday  of  November. 

As  Iowa  had  not  changed  its  day  of  election  since  the  passage  of  the 
act  of  Congress  incorporated  in  section  25  of  the  Revised  Statutes,  if 
its  constitution  must  be  amended  in  order  to  eifect  "a  change  in  the 
day  of  election  of  State  officers  in  said  State,"  then,  by  section  (i,  chap- 
ter 130,  of  the  acts  of  1875,  the  twenty-fifth  section  of  the  Revised 
Statutes  of  the  United  States  did  not  apply  to  the  State  of  Iowa. 

By  the  statutes  of  the  State  of  Iowa  Representatives  in  Congress, 
except  on  the  years  of  the  Presidential  election,  must  be  elected  at  a 
general  election  to  be  held  throughout  the  State  on  the  second  Tuesday 
of  October. 

Section  6,  chapter  130,  of  the  acts  of  the  United  States  of  1875  is  in 
these  words : 

Sec.  6.  That  section  25  of  the  Kevised  Statutes,  prescribing  the  time  for  holding 
elections  for  R+'presentatives  in  Congress,  is  hereby  moditied  so  as  not  to  apply  to 
any  State  that  has  not  yet  changed  its  day  of  election,  and  whose  constitntion  must 
be  amended  in  order  to  eifect  a  change  in  the  dav  of  election  of  State  officers  in  said 
State. 

It  thus  became  the  duty  of  the  governor  to  deteriiune  the  meaning 
of  the  constitution  of  Iowa  in  the  particular  mentioned,  and  this  was 
done  by  him  as  the  only  authority  in  Iowa  which,  under  the  constitu- 
tion and  the  laws  of  Iowa,  had  the  right  or  was  charged  with  the  duty 
of  determining  it,  and  it  was  ilone  in  the  j)erformauce  of  an  official  duty 
which  could  not  be  avoided. 

It  is  the  doctrine  of  the  Suprenu's  Court  of  the  United  States  that  de- 
cisions of  the  highest  judicial  court  of  a  State  upon  the  meaning  of  the 
State  laws  and  constitution,  when  its  decisions  are  uniform,  are  bind- 
ing on  that  court. 

The  construction  of  the  Constitution  and  laws  of  the  United  States 
belongs  of  course  to  the  courts  of  the  United  States  in  any  contro- 
versy before  those  courts;  but  in  considering  whether  the  laws  and 
constitution  of  a  State  contlict  with  the  laws  and  Constitution  of  the 
United  States  as  construed  by  the  courts  of  the  United  States,  those 
courts  take  the  laws  and  constitution  of  the  State  as  construed  by  the 
courts  of  the  State  when  their  decisions  are  uniform. 

The  undersigned  are  not  prepared  to  hold  that  the  decision  of  the 
highest  authority  of  a  State  upon  the  meaning  of  its  constitution  in 
reference  to  whether  the  day  of  the  election  of  State  otlicers  is  fixed  by 
that  constitution  or  not,  so  far  as  it  is  material  in  determining  the  legal- 
ity of  an  election  of  Representatives  in  Congress,  is  absolutely  binding 
upon  this  House. 

In  a  rej)ort  from  the  Committee  on  Elections,  adopted  by  this  House 
April  11,  1871,  in  the  matter  of  the  Tennessee  election  (Digest  of  Elec- 
tion Cases,  compiled  by  J.  M,  Smith,  p.  1),  the  committee  say : 

It  is  a  well-established  and  most  salutary  rule  that  where  tlie  ]>roper  authorities  of 
the  State  government  have  given  a  construction  to  their  own  constitution  or  statutes, 


HOLMES    VS.    WILSON.  331 

tliat  foustrnctiou  will  be  followed  by  tlie  Federal  authorities.  This  rule  is  absolutely 
uecessary  to  ti.e  haruiouious  workinj;  of  our  complex  Goveruuient,  State  and  uatioual, 
and  your  couuuittce  arc  uot  disposed  to  be  the  first  to  depart  froui  it. 

We  are  not  disposed  to  be  tbe  first  to  dei)art  from  it,  and  we  cer- 
tainly think  that  such  a  decision  made  in  good  faith  and  acquiesced  m 
at  the  time  by  the  i)eo])le  of  the  State,  and  follo^ved  by  a  full  and  fair 
election,  should  not  be  overthrown  or  questioned  except  for  the  gravest 
reasons,  founded  on  an  undouhting-  conviction  that  it  was  plainly  an 
error,  and  that  the  error  had  worked  some  substantial  injury. 

Section  4,  article  1,  of  the  Con>titution  of  the  United  States  confers 
l)ower  on  the  lef/islatiires  of  the  States  to  prescribe  thetime  of  electing 
Eepresentatives  in  Congress  in  the  absence  of  any  controlling  regula- 
tions by  Congress. 

The  provisions  of  the  confititution  of  a  State  cannot  take  this  power 
from  the  legislature  of  a  State,  and  Congress  cannot  take  from  a  State 
the  right  to  tix  either  by  its  constitution  or  by  its  laws  the  day  of  elect- 
ing State  officers. 

The  object  of  section  G,  chapter  LW,  of  the  acts  of  187r>  was  to  j)re- 
vent  compelling  any  State  against  the  will  of  its  legislature  to  have  two 
elections  on  different  days,  one  for  Eepresentatives  in  Congress  and  one 
for  State  officers,  or  else  to  change  its  constituiion. 

If  the  legislature  of  a  State  had  a  right  under  the  constitution  of  the 
State  to  (ix  the  day  of  election  of  State  officers,  it  could  if  it  saw  fit 
fix  the  same  day  for  the  State  election  as  that  fixed  by  Congress  for  the 
election  of  Rei)resentatives  in  Congress  by  section  25  of  the  lievised 
Statutes,  or  it  could  of  course  fix  a  different  day.  But  if  the  constitu- 
tion of  the  State  fixed  a  day  of  election  of  State  officers,  and  that  was  a 
different  day  from  the  Tuesday  next  after  the  first  Monday  of  Novem- 
ber, the  day  fixed  by  the  twenty  fifth  section  of  the  Revised  Statutes 
for  the  election  of  Represevtatives  in  Congress,  then,  except  for  section 
0,  chapter  130, of  the  acts  of  1875,  the  State  must  have  two  elections,  or 
be  i)ut  to  the  trouble  of  amending  its  constitution. 

This  amendment  of  sc<!tion  25  of  the  Revised  Statutes  enabled  any 
State  having  such  a  constitution  to  have  two  elections  or  one,  as  the 
legislature  of  that  State  desired,  because  after  the  amendn)entthe  legis- 
lature of  such  a  State  had  a  right,  under  the  Constitution  of  the  United 
States,  to  fix  any  day  for  the  election  of  Representatives  in  Congress  its 
legislature  saw  fit. 

The  reason,  then,  of  section  6,  chapter  130,  of  the  acts  of  1875,  as  an 
amendment  tothe  twenty-fifth  section  of  the  Revisetl  Statutes,  is  equally 
applicable  to  a  State  whose  constitution  fixed  the  day  of  election  of 
some  State  officers  as  to  a  State  whose  constitution  fixed  the  day  of  elec- 
tion of  all  State  officers. 

It  was  not  the  intention  of  Congress,  either  by  this  or  any  other  legis- 
yitiou,  to  compel  a  State  to  hold  its  election  for  Representatives  in  Con- 
gress on  the  same  day  as  that  for  the  election  of  anj-  State  officers; 
whether  the  two  elections  should  be  held  on  the  same  day  or  on  different 
days  it  meant  to  leave  to  the  legislature  of  each  State  to  determine. 

Congress  effected  this  intention  by  so  amending  section  25  of  the  Re- 
vised Statutes  that  it  should  not  api)ly  to  a  State  whose  constitution 
fixed  a  day  for  the  State  election,  and  by  tiius  doing  Congress  left  to 
t\w  legislatures  of  all  the  States  the  power  to  make  the  day  of  election 
of  Representatives  in  Congress  and  tiie  day  of  election  of  State  oflflcers 
the  same  day  or  different  days,  as  the  legislature  of  each  State  might 
choose. 

To  say  that  section  6,  chapter  130,  of  the  acts  of  1875  is  applicable 


332  DIGEST    OF    ELECTION    CASES. 

only  to  a  State  whose  coustitutiou  must  be  amended  in  order  to  effect  a 
change  in  the  day  of  election  of  everj'  State  officer,  is  against  a  proper 
construction  of  its  language,  as  well  :is  against  the  reason  of  thestatute, 
and  ignores  the  mischief  it  was  designed  to  remedy. 

The  reason  of  this  amendment  might  contine  the  meaning  of  the  words 
"  change  in  the  day  of  election  of  State  officers"  to  "State  officers" 
elected  by  the  people,  excludii)g  State  officers  elected  by  the  legislature. 
It  may  also  be  that  the  words  "day  of  the  election  of  State  officers"  must 
be  confined  to  the  legularly  recurring  day  of  election,  and  could  not  be 
extended  to  include  a  day  of  electiou  fixed  in  the  coustitutiou  for  filling 
unexpired  terms.  It  is  possible,  too,  that  the  words  "day  of  the  elec- 
tion "  must  be  held  to  mean  a  day  of  an  election  throughout  the  whole 
State,  although  such  an  election  might  be  held  by  districts  or  divisions, 
as  the  election  of  Representatives  in  Congress  is  held  by  districts. 

From  these  considerations  it  seems  evident  that  if  there  is  a  day  of 
election  by  the  people  throughout  the  whole  State  fixed  by  the  consti- 
tution of  a  State  for  the  election  of  some  of  the  State  officers,  and  that 
day  is  other  than  the  Tuesday  next  after  the  first  Monday  of  November, 
then  section  25  of  the  Revised  Statutes  is  not  ai)plicable  to  such  State. 

The  provisions  of  the  constitution  of  the  State  of  Iowa,  adopted  in 
the  year  1857,  and  ever  siuce  in  force,  which  bear  most  directly  on  this 
question,  are  the  following,  and  they  are  gi^  en  in  the  order  in  which 
they  are  found  in  the  constitution  : 

Articlk  Thrke. 

legislative  department. 

Sec.  3.  Members  of  the  House  of  Representatives  shall  be  chosen  every  second  year 
by  the  qnalified  electors  of  their  respective  districts  on  the  second  Tnesday  of  October, 
except  the  years  of  the  Presidential  election,  when  the  election  shall  be  lield  on  the 
Tuesday  after  the  tirst  Monday  of  November. 

The  term  of  office  is  two  years. 

Sec.  5.  Senators  shall  be  chosen  for  the  term  of  four  years,  at  tlie  same  time  and 
place  as  representatives.     *     *     » 

Senators  are  classified  so  that  one-half,  as  near  as  may  be,  shall  be 
elected  every  two  years.  In  this  article  nothing  is  said  of  the  year  of 
the  election. 

Article  Four. 

executive  department. 

Sac.  2.  The  governor  shall  be  elected  by  the  qualified  electors  at  the  time  and  place 
of  voting  for  members  of  the  general  assembly.     •     »     » 

He  holds  office  for  two  years. 

Sec  3.  There  shall  be  a  lieutenant-governor  who  shall  hold  his  oflSce  two  years  and 
be  elected  at  the  same  time  with  the  governor.     *     «     • 

Sec  10.  When  any  office  shall  from  any  cause  become  vacant,  and  no  mode  is  pro- 
vided by  the  constitution  and  laws  for  filling  such  vacancy,  the  governor  shall  have 
power  to  fill  such  vacancy  by  granting  a  commission,  which  shall  expire  ar  the  end 
of  the  next  session  of  the  general  assembly  or  at  the  next  election  by  tbe  people. 

Sec  22.  The  secretary  of  the  state,  auditor  of  state,  and  treasurer  of  state  shall  be 
elected  by  the  qualified  electors  and  shall  continue  in  office  two  years.      "     *     * 

There  is  nothing  in  this  article  about  the  day  or  year  of  the  election. 

Article  Five. 

judicial  department. 

Sec  3.  The  judges  of  the  supreme  court  shall  be  elected  by  the  qualified  voters  of 
the  State.     •     *     » 


HOLMES    VS.    WILSON.  333 

The  term  is  four  years. 

Sec.  11.  Judges  of  the  supreme  court  and  of  district  courts  shall  be  chosen  at  the 
general  election.     *     »     * 

This  is  the  first  place  where  the  words  "general  election"  are  used. 

Skc.  12.  The  general  assembly  shall  provide  hy  law  for  the  election  of  au  attorney- 
general  by  the  {)eoiile,  whose  term  of  office  shall  be  two  years.     »     *     » 

This  is  the  first  express  provision  that  the  general  assembly  shall 
make  provisions  by  law  for  any  election. 

Sec.  1.3.  The  qualilied  electors  of  each  judicial  district  shall  at  the  time  of  electing 
the  district  judge  elect  a  district  attorney.     *     ►     » 

The  term  is  four  years. 

Akticle  Sevex. 

Sec.  T).  But  no  such  laws  [laws  ia  reference  to  the  State  coutractiug  debts']  shall 
take  effect  uutil  at  a  general  election  it  shall  have  been  submitted  to  the  people.  *  *  * 

Article  Nine. 

education  and  schools. 

A  board  of  education  is  established,  consisting  of  the  lieutenant-gov- 
ernor and  one  member  to  be  elected  from  each  judicial  district  in  the 
State. 

Sec.  3.  One  nu'uiber  of  said  board  shall  be  chosen  by  the  qualified,  electors  of  said 
district  and  shall  hold  office  for  'he  term  of  four  years.     ♦     »     » 

The  board  is  classified  so  that  one-half,  as  near  may  be,  shall  go  out 
every  two  years. 

Akticle  Ten. 

amendments  to  the  constitution. 

Sec.  3.  At  the  general  election  to  be  held  in  the  year  one  thousand  eight  hundred  and 
seventy,  and  at  each  ten  years  thereafter,  and  also  at  such  times  as  the  general  assem- 
bly may  by  law  provide,  the  question  of  amending  or  revising  the  constitution  shall 
be  voted  upon  by  the  electors.     »     »     * 

Article  Eleven. 

miscellaneous. 

Sec.  6.  In  all  cases  of  elections  to  fill  vacancies  in  offices  occurring  before  the  ex- 
piratiou  of  a  full  term,  the  person  so  elected  shall  hold  for  the  residue  of  the  unexpired 
term;  and  all  persons  appointed  to  fill  vacancies  In  office  shall  hold  until  the  next 
general  election,  and  until  their  successors  are  elected  and  qualified. 

Article  Twelve. 

schedule. 

Sec.  6.  The  first  election  under  this  constitution  shall  be  held  on  the  second  Tuesday 
in  October,  in  the  year  one  thousand  eight  hundred  and  fifty-seven,  at  which  time  the 
electors  of  the  State  shall  elect  the  governor  and  lieut-naut-governor ;  there  shall  also 
be  elected  at  such  election  the  snccetsors  of  such  senators  as  were  elected  at  the  August 
election,  in  the  year  one  thousand  eight  hundred  and  fifty-four,  and  members  of  the 
house  of  representatives.     »     «     »     * 

Sec.  7.  The  iirst  election  for  secretary,  auditor,  and  treasurer  of  State,  attorney- 
general,  diiirictjudyes,  members  of  the  board  of  education,  district  attorney,  members 
of  Congress,  and  such  State  ofiicers  sis  shall  be  elected  at  the  April  election,  in  the  year 
one  thousand  eiglit,  hundred  and  fiftjvseven,  except  the  superintendent  of  public  in- 
struction and  such  county  officers  as  were  elected  at  the  August  election,  in  the  year 
one  thousand  fight  huudreil  and  fifty-six,  except  prosecuting  attorneys,  shall  be  held 
on  the  second  Tuesday  of  October,  one  thousand  eight  hundred  and  fifty-eight,  pro- 
vided the  time  for  which  any  district  judge  or  any  other  State  or  county  officer  was 


334  DIGEST    OF    ELECTION    CASES. 

elected  at  the  April  election,  eijjbteen  hiiuflred  and  filty-eiglit,  shall  not  extend  be- 
yond the  time  for  filling  like  offices  at  the  October  election,  in  the  year  one  thousand 
eight  hnndred  and  tifty-eight. 

Skc.  8.  The  lirst  election  forjudges  of  the  supreme  court  and  such  county  officers 
as  shall  be  elected  at  the  August  election,  in  the  year  one  thousand  eight  hnndred  and 
fifty-seven,  shall  be  held  on  the  second  Tucsilay  of  October,  in  the  y<  ar  one  thousand 
eigiit  hundred  and  fifty-nine. 

Sec.  1(1.  Senators  elected  at  the  August  election,  in  the  year  one  thousand  eight 
hundred  and  fifty-six,  shall  continue  in  office  until  the  second  Tuesday  of  Octobf^r,  in 
the  year  one  thousand  eight  hundred  and  fifty-nine,  at  which  time  their  successors 
shall  be  elected  as  may  be  prescribed  by  law. 

This  constitution  was  ratified  bv  the  people  August  3, 1857.  One  ob- 
ject in  establishin<x  it,  as  appears  by  the  records  of  tlie  proceedin^js  in 
the  constitutional  convention,  was  to  do  away  with  tlie  two  elections 
required  by  the  constitution  of  184G,  in  Presidential  years. 

In  the  year  185(5,  the  year  before  the  adoption  of  the  present  consti- 
tution, tliere  had  been  held  an  election  in  Ai)ril  for  township  otticers  and 
district  judges,  an  election  in  August  for  many  otiier  State  and  county 
oflicers  and  for  jnenibers  of  Congress,  and  an  election  in  November  for 
Presidential  electors.  Until  the  schedule  being  article  12  of  the  consti- 
tution of  1857  is  reached,  there  is  nothing  in  the  constitution  itself  indi- 
cating the  year  in  which  any  of  the  elections  would  be  lield.  The  terms 
of  office  were  two.  four,  ami  six  years. 

It  is  j)lain  that  there  must  be  an  election  every  two  years,  but  until 
the  schedule  established  it  there  was  nothing  to  indicate  on  what  year 
the  first  election  untler  this  constitution  should  be  held.  In  the  absence 
of  the  schedide,  although  there  is  no  exi)ress  jnovision  that  all  the 
officers  should  be  elected  at  the  first  election,  yet  the  implication  to  be 
derived  from  section  3,  article  3,  in  whicli  a  day  of  election  is  expressly 
fixed  in  reference  to  the  members  of  the  State  house  of  rei)resentatives, 
-and  is  fixed  expressly  on  the  Presidential  year  for  the  Tuesday  next 
after  the  first  Monday  of  November,  wtmld  be  that  members  of  that 
house  would  be  elected  on  the  years  of  the  Presidential  election,  and  as 
that  occurs  on  even  numbered  years,  and  as  the  terms  of  members  of 
that  house  are  two  years,  the  further  inference  from  that  section  would 
be  that  the  members  of  the  house  of  representatives  of  the  State  were  to 
be  elected  on  the  even-numbered  years ;  and  aj)i)lying  that  to  the  other 
sections  that  have  been  cited,  in  the  absence  of  the  schedule,  the  infer- 
ence would  be  that  it  was  intended  by  the  constitution  to  establish  bien- 
nial general  elections  to  be  held  on  even  numbered  years,  namely,  on 
the  years  of  the  Presidential  election,  on  the  Tuesday  next  after  the  first 
Monday  of  November,  and  on  other  even-numbered  years  on  the  second 
Tuesday  of  October. 

By  the  schedule  it  was  determined,  apparently  for  the  first  time,  that 
there  should  be  annual  elections;  that  part  of  the  State  officers  should 
be  elected  in  the  even-numbered  years  and  part  in  the  odd ;  and  pro- 
vision was  made  for  fixing  the  year  in  which  the  first  election  for  the 
ditferent  officers  should  be  held  ;  and  this  year  being  fixed,  succeeding 
elections  of  these  officers,  except  in  the  case  of  vacancies,  followed,  as  of 
course,  according  to  the  respective  lengths  of  the  terms  of  office,  which 
in  every  case  were  an  even-number  of  years. 

The  words  general  election  occurring  in  the  constitution  can  only  refer 
to  an  election  held  on  the  second  Tuesday  of  October,  except  in  the 
year  of  the  Presidential  election,  and  then  on  the  Tuesday  next  after  the 
first  Monday  in  November,  and  in  section  3,  article  10,  it  is  expressly 
provided  that  a  general  election  shall  be  held  in  1870,  and  in  every  tenth 
year  thereafter  which  are  even -numbered  years. 


HOLMES    VS.    WILSON.  335 

• 

An  argiunent  may  be,  perhaps,  drawn  in  reference  to  the  secretary  of 
State,  anditor  of  State,  and  treasnrer  of  State  from  section  22,  article 
4,  becanse  no  time  for  the  election  of  these  officers  is  therein  expressed ; 
that  it  was  intended  to  leave  the  time  of  their  election  to  the  legislature ; 
but  there  are  no  provisions  in  the  constitution  giving  the  legislature 
power  to  fix  the  tim*'.  of  the  election  of  these  officers,  and  in  section  12 
of  article  .1  the  provision  is  that  the  general  assembly  may  provide  by 
law  for  the  election  of  an  attorney-general  by  the  [»eoplc,  whose  term  of 
office  shall  be  two  years,  &c. ;  and  the  argument  is  perhaj)s  equally 
strong  that  if  the  people  did  intend  by  their  constitution  that  the  gen- 
eral assembly  should  provide  by  law  for  the  election  of  secretary,  au- 
ditor, and  treasurer  of  the  State,  they  would  have  said  so  in  plain  terms. 

The  i>owers  whi(!h  the  people,  by  their  constitution,  confer  upon  the 
legislature  are  to  be  determined  by  a  proper  construction  of  the  consti- 
tution itself,  in  the  same  manner  as  the  regulatic>ns  they  have  lixed  for 
themselves  by  that  constitution,  or  as  the  rights  and  powers  they  l)ave 
reserved  to  tliemselves  outside  of  the  limits  of  that  constitution. 

Among  the  officers  whose  tirst  election  by  section  7,  of  article  12,  is 
fixed  for  th(^  second  1  uesday  of  October,  1858,  and  even-numbered  year, 
not  Presidential,  are  district  judges,  who  by  section  11,  article  5,  are  to 
be  chosen  at  the  (jcneral  election,  and  who  held  office  for  four  years,  who 
were  therefore  elected  thoughout  the  State  on  the  secoud  Tuesday  of 
<:)ctober,  1878. 

In  a  constitution  in  some  respects  so  inartificially  drawn  as  this  is,  in 
which  in  reference  tosonie  officers  the  day  of  election  is  expressly  fixed 
in  the  constitution,  in  reference  to  others  it  is  ])rovidc(l  that  they  are 
to  be  chosen  at  a  f/encrol  election,  and  to  others  that  they  are  to  be 
elected  by  the  qualified  voters,  but  no  provision  is  expressly  made  for 
fixing  the  time  of  their  election,  and  in  reference  to  one  of  them,  the 
attorney-general,  there  is  an  express  provision  that  the  general  assem- 
bly may  i>rovide  by  law  for  his  election,  much  weight  must  be  given  to 
the  general  scope  and  meaning  of  the  instrument,  and  we  think  that  it 
sufficiently  appears  in  the  constitution  itself  that  the  people  of  Iowa 
intended  by  their  constitution  that  there  should  be  annual  yenend  elec- 
tiona  for  State  offices;  that  these  elections  should  be  held  on  all  but 
Presidential  years  on  the  second  Tuesday  of  October,  and  on  those 
years  on  the  Tuesday  next  after  the  first  Monday  of  November;  and  that 
the  intention  of  the  sections  in  the  schedule  which  have  been  cited  was 
to  establish  the  years  of  the  first  election  of  the  different  officers,  so 
that  some  might  be  elected  each  year  at  the  annual  election,  the  officers 
under  the  old  constitution  continuing  in  office  until  their  successors  were 
elected,  and  that  it  was  not  meant  by  this  schedule  to  permit  the  legis- 
lature to  make  a  hange  in  the  day  of  the  general  election  in  any  year 
after  the  first  election. 

The  significance  of'  the  expression  of  time  in  these  sections  of  the 
schedule  is  in  the  year  and  not  the  day.  The  same  day  is  named  for 
all  the  years.  It  is  conceded  that  on  the  odd-numbered  years  after  the 
first  election  there  must  be  an  election  for  members  of  the  State  house 
of  representatives,  of  one-half  of  the  senators,  of  governors,  lieutenant- 
governors,  and  some  of  the  judges  of  the  supreme  court,  and  that  the 
election  must  be  on  the  second  Tuesday  in  October;  but  there  is  nothing 
in  the  constitution  indicating  that  the  provisions  for  the  day  of  election 
were  meant  to  be  difierent  on  the  even-numbered  years  not  Presidential 
than  on  the  odd-numbered  years,  or  thatthe  constitution  meant  to  give 
the  legislature  any  more  control  over  the  day  of  election  in  even-num- 
bered years  than  in  odd 


336  DIGEST  OF  ELECTION  CASES. 

• 

The  reason  for  fixing  a  difterent  daj'  on  tbe  years  of  the  Presidential 
elections  has  been  stated — nainelv,  that  the  appointment  of  Presiden- 
tial electors  had  been  tixed  by  a  statnte  of  the  United  States  for  the 
Tnesday  next  after  the  first  INIonday  of  November:  bnt  at  the  time  of 
the  adoption  of  this  constitution  there  was  no  law  of  Congress  prescrib- 
ing the  time  of  electing  Representatives  in  Congress,  and  it  is  not  to  be 
presumed  that,  except  on  Presidential  years,  without  any  known  reason 
whatever,  it  was  intended  that  the  elections  in  the  successive  years 
should  be  held  on  diflerext  days, or  that  the  legislature  should  have  the 
power  to  change  the  day  on  evcn-uumbercd  years,  but  not  on  odd.  It  is 
not,  of  course,  admitted  tliat  if  the  constitution  of  a  State  established 
biennial  elections  to  be  held  at  a  certain  tiuie  on  the  odd-numbered 
years,  that  then  the  twenty-tilth  section  of  the  Revised  Statutes  would 
be  ajjplicable  to  sueh  a  State.  The  late  constitution  of  California,  under 
which  Itepresentatives  in  Congiess  were  elected  in  September  in  the 
odd-numbered  years,  illustrates  this. 

The  general  peculiarities  of  the  constitution  of  1857  are  derived  from 
that  of  1840,  and  the  i)articular  provisions  on  which  the  decision  turns 
are  similar  in  both. 

The  constitution  of  1S4G  provided  as  follows: 

The  members  of  the  House  of  Representiitives  thall  be  eboseu  every  second  year,  * 
*  *  ou  the  first  Monday  of  August,  whose  term  of  ofiSce  shall  continue  two  years 
from  the  general  election. 

In  this  section  no  year  of  election  is  mentioned. 

Senators  shail  be  chosen  for  tbe  term  of  four  years  at  the  same  time  and  place  as 
Repieseutatives.     »     *     « 

They  are  to  be  classified  so  that  one-half  are  to  be  elected  every  two 
years. 

A  secretary  of  state,  auditor  of  public  accounts,  and  treasurer  shall  be  elected  by 
the  qualified  electors,  who  shall  continue  in  office  two  years. 

The  judges  of  the  supreme  court  were  to  be  ele(;ted  by  the  general 
assembly,  and  the  district  judges  were  to  be  elected  by  the  qualified 
voters  of  the  district  in  which  they  reside  at  the  towuHhip  election. 

The  qualified  voters  of  each  cotinty  sball  at  the  general  election  elect  one  prosecut- 
ing attorney,  and  one  clerk  of  the  district  court,  who  shall  be  resident,  «&c. 

The  term  of  office  was  two  years. 

There  was  no  attorney-general  by  this  constitution. 

Article  Twelve. 

schedule. 

ScE.  5.  The_^r«(  general  election  under  this  constitution  shall  be  held  at  such  time 
as  the  governor  of  the  Territory  by  proclamation  may  appoint  within  three  mouths 
after  its  adoption  for  the  election  of  a  governor,  two  Rei»resentativesin  the  Congress 
of  the  United  States  (unless  Congress  shall  provide  for  the  election  of  one  Representa- 
tive), members  of  the  general  aesemblv,  and  one  auditor,  treasurer,  and  secretary  of 
state.     •     •    • 

The  office  of  clerk  was  not  mentioned  in  this  section,  and  no  express 
provision  was  made  in  this  constitution  for  the  year  of  holding  the  gen- 
eral election  except  this,  which  in  terms  related  only  to  the  first  general 
election. 

Under  this  constitution  the  case  of  the  State  vs.  Cadle  arose  (2  Green's 
Reports,  Iowa,  p.  400),  which  was  decided  by  the  supreme  court  of  Iowa 
in  1850.  The  case  was  an  information  in  the  nature  of  a  quo  tcarranto 
on  the  relation  of  Abraham  Smaliey  against  Richard  Cadle.     Smalley 


HOLMES    VS.    WILSON.  337 

claimed  to  have  been  elected  clerk  of  the  district  court  of  the  county  of 
Muscatine  on  the  first  Monday  of  August,  1849.  Cadle  claimed  to  have 
been  elected  such  clerk  at  a  general  election  held  on  the  first  Monday 
of  August,  1848.  In  the  opinion  it  is  stated  that  the  first  general  elec- 
tion was  fixed  by  proclamation  of  the  governor  of  the  Territory  in  Octo- 
ber, 1840,  and  in  another  place  in  the  oi)iuion  it  is  referred  to  as  having 
been  fixed  in  December,  1846. 

At  the  first  election  the  opinion  states : 

Several  of  the  clerks  were  chosen  without  legal  notice  of  the  election.  •  **  • 
Clefks  were  again  elected  on  the  first  Monday  in  August,  1847,  in  some  of  the  counties, 
and  their  election  was  declared  to  he  legal  by  an  act  of  the  general  assembly  approved 
January  25,  1848,  and  by  the  same  act  subsequent  elections  were  authorized  to  take 
place  on  the  first  Monday,  in  August,  1849,  and  biennially  theieafter. 

If  this  act  was  constitutional,  then  Smalley,  the  relator,  was  entitled 
to  the  office  by  virtue  of  his  election  on  the  first  Monday  in  August, 
1849.  Cadle's  claim  that  he  was  duly  elected  on  the  first  Monday  of 
August,  1848,  and  still  held  the  office,  rested  on  these  propositions:  That, 
by  the  constitution,  clerks  were  to  be  elected  at  the  general  election ;  that 
by  the  proper  construction  of  the  constitution,  the  general  election  was 
to  take  place  every  two  years;  that  as  the  first  general  election  had  been 
fixed  by  the  proclamation  of  the  governor  of  the  Territory  for  the  year 
1846,  by  a  proper  construction  of  the  constitution  the  subsequent  gen- 
eral elections  must  be  held  on  the  first  Monday  in  August  in  the  even- 
numbered  years  thereafter,  and  that  therefore  the  act  of  the  general 
assembly  fixing  the  election  of  clerks  on  the  odd-numbered  years  was 
unconstitutional  and  void. 

The  court  sustained  this  view,  and,  among  other  things,  say: 

Bnt  the  first  general  election,  as  we  have  seen,  was  to  be  at  such  time  as  the  Terri- 
torial governor  might  appoint.  That  time  having  been  fixed  in  December,  1846,  it 
necessarily  follows  that  the  next  general  election,  as  biennially  designated  by  the  con- 
stitution, was  on  the  first  Monday  of  August,  1848,  and  would  occur  on  the  same  Mon- 
day on  each  alternate  year  thereafter.  »  •  •  Bnt  independent  of  this  consider- 
ation [speaking  of  the  consideration  of  public  convenience]  and  without  going  beyond 
the  explicit  language  of  the  constitution,  we  have  united  in  the  conblusion  that  the 
general  elections  authorized  by  the  constitution  are  biennial,  and  as  the  first  general 
election  took  place  in  1846,  the  second  was  held  on  the  first  Monday  in  August,  1848, 
and  that  under  the  constitution  the  only  time  appointed  for  the  election  of  clerks  and 
prosecuting  attorney  is  at  the  general  elections. 

The  court  thus  construed  together  the  words  "first  Monday  of  Aug- 
ust," being  the  day  fixed  for  the  election  of  State  representatives,  the 
words  "  general  election,"  the  fact  that  the  first  general  election  was 
fixed  by  the  governor  pursuant  to  the  constitution  for  the  year  1846, 
and  the  provision  that  the  terms  of  office  were  two  years  or  multiples 
of  two  years,  and  decided  that  by  the  constitution  general  elections  were 
fixed  by  the  constitution  for  the  first  Monday  of  August  on  the  even- 
numbered  years  after  the  first  election  in  1846. 

The  reasoning  of  this  opinion  of  the  supreme  court  of  Iowa  is  sub- 
stantially that  adopted  in  this  report.  A  comparison  of  the  two  consti- 
tutions shows,  as  has  been  said,  that  much  of  the  language  of  the  con- 
stitution of  1857  was  taken  verbatim  from  that  of  1846,  and  this  com- 
parison also  accounts  for  the  peculiar  language  in  the  constitution  of 
1857,  in  reference  to  the  election  of  an  attorney-general,  an  officer  un- 
known to  the  constitution  of  1846,  and  for  the  fact  that  until  the  sched- 
ule is  reached  the  constitution  of  1857  apparently  contemplates  biennial 
elections. 

H.  Mis.  58 22 


338  DIGEST  OF  ELECTION  CASES. 

It  was  ill  view  of  this  decision  of  the  supreme  court  of  Iowa,  settling 
the  construction  to  be  given  to  the  constitution  of  18^6,  that  the  framers 
of  the  constitution  of  1857  acted,  and  it  woukl  not  occur  to  thein  that 
the  same  language  in  the  new  constitution  as  in  the  old,  or  similar  lan- 
guage, would  or  could  receive  a  different  construction. 

We  are  fortified  in  the  conclusion  we  have  reached  by  the  proceedings 
in  the  constitutional  convention  of  1857. 

In  the  debate  on  the  third  section  of  article  three,  relating  to  the 
election  of  members  of  the  House  of  Eepresentatives,  which  was,  so  far 
as  the  time  of  election  is  concerned,  reported  in  its  present  form,  Mr. 
Gillespie  moved  to  amend  by  providing  that  the  elections  shall  be  held 
on  the  Tuesday  next  after  the  first  Monday  in  November,  and  in  explan- 
ation of  the  amendment  said : 

If  we  fix  the  tiuie  of  the  general  election  in  order  to  have  the  terms  of  offices  uniform 
we  must  fix  the  elections  in  October  or  in  November ;  iu  the  region  of  the  State  which 
I  represent,  our  people  are  dissatisfied  with  the  numerous  elections  we  have,  and  there 
seems  to  be  a  general  feeling  manifested  throughout  in  favor  of  placing  the  general 
election  on  the  day  of  the  Presidential  election,  so  as  to  obviate  the  necessity  and  ex- 
pense of  having  two  elections. 

Mr.  Parvin,  who  was  chairman  of  the  committee  on  the  legislative 
department,  said: 

I  am  not  particular  myself  whether  these  elections  are  fixed  in  October  or  November, 
bxit  so  far  as  I  have  conversed  with  other  persons  on  the  subject  they  seem  to  think 
that  the  weather  in  November  is  too  cold  and  blustering  for  elections  to  be  held  during 
that  month,  and  that  October  wonld  be  a  more  suitable  month. 

It  was  thought  by  the  committee  that  it  was  not  necessary  to  have  two  elections  so 
near  every  four  years;  to  remedy  that  they  made  provision  that  on  the  years  of  the 
Presidential  elections  the  general  elections  should  be  also  on  that  day. 

Mr.  Palmer  said: 

I  think  this  section  is  well  enough  as  it  is.  It  provides  for  elections  being  held  on 
the  second  Tuesday  in  October  of  each  year  except  the  years  of  the  Presidential  elec- 
tion, when  it  is  to  lie  held  on  the  day  of  that  election.  *  *  *  As  to  the  time,  I  think 
it  is  well  enough  to  have  the  election  in  October  when  we  can  do  so,  and  not  have  two 
elections  coming  so  close  together. 

The  objection  is  a  very  obvious  one — to  having  two  elections  coming  close  together 
every  four  years,  requiring  voters  to  go,  as  the  gentleman  from  Rattan  has  said — to 
go  from  twenty  to  twenty-five  miles  to  the  place  of  election,  or  lose  their  votes.  "  * 
"  I  am  in  favor  of  having  our  election  on  the  second  Tuesday  in  October  in  those 
years  other  than  the  years  of  the  Presidential  election,  on  account  of  the  weather  and 
the  convenience  of  our  farmers.     (Constitutional  Debates  of  Iowa,  1857,  pji.  514,515.) 

Afterwards  Mr.  Young  moved  to  strike  out  the  exception  of  the  years 
of  the  Presidential  election,  and  said: 

As  the  section  now  stands,  we  would  have  elections  for  three  years  in  October  and 
for  one  year  in  November. 

Mr.  Gillespie,  in  reference  to  this  proposed  amendment,  said : 

I  do  hope  that  the  people  of  this  State  will  not  be  burdened  with  two  elections — 
one  in  October  and  one  iu  November — every  four  years,  and  that  the  convention  will 
adopt  the  report  of  the  committee.  If  the  report  be  adopted,  I  am  perfectly  satisfied, 
and  I  believe  my  people  will  be  satisfied  with  it,  because  it  accomplishes  the  great  ob-. 
ject  we  had  in  view — that  is.  to  do  away  with  the  frequent  elections  that  caused  so 
much  trouble  and  expense.     (Pages  576, 577.) 

In  discussing  the  schedule  (rejwrt  on  the  schedule),  in  which  the  sec- 
tions cited  in  this  report  were  reported  in  their  present  form,  Mr.  Wil- 
son said : 

The  committee  have  determined  to  so  arrange  the  tickets  as  to  divide  the  can- 
didates in  about  equal  proportions  for  the  elections  to  be  held  upou  difieieut  years. 
•     *     *     By  pursuing  this  course,  we  find  that  at  the  next  October  election  we  have 


HOLMES   VS.    WILSON.  339 

to  elect  members  of  the  general  assembly  and  governor  and  lientenant-govemor.  At 
the  election  in  Ot-tober,  1858,  we  have  to  elect  the  secretary,  auditor,  and  treasurer  of 
state,  attorney-general,  district  judges,  district  attorneys,  members  of  Congress,  board 
of  education,  and  such  State  oflficers  as  will  be  elected  at  the  next  April  election.  This 
will  give  a  ticket  of  about  equal  size  to  each  year. 

When  we  come  to  put  in  the  first  ticket  for  the  judges  of  the  supreme  court  to  be 
elected  in  IS'iil,  we  will  give  tickets  to  each  year  of  about  equal  proportions;  for  in 
oneyear  we  v.iH  have  election  of  judges  of  the  supreme  court,  members  of  the  general 
assembly,  govt!rm>r  and  lieutenant-governor,  and  in  the  other  we  have  the  remainder 
of  the  State  oflRcers  and  our  Co  gressmen.  We  concluded  that  that  was  the  l)e8t  di- 
vision of  the  tickets,  inasmuch  as  we  were  compelled  to  have  elections  in  these  differ- 
ent years.     (Con.stitutional  Debates,  p.  1039.) 

These  statements  seem  to  ba^'e  been  uncontradicted  in  the  conven- 
tion, and  apparently  it  did  not  occnr  to  the  members  of  that  bodj'  that 
thej"  had  not  fixed  a  day  of  election  for  all  the  years,  viz,  on  all  but  the 
years  of  the  Presidential  election,  on  the  second  Tuesday  in  October, 
and  on  those  years  on  the  Tuesday  next  after  the  first  Monday  in  No- 
vember. 

We  are,  therefore,  of  opinion  that  the  governor  of  Iowa  adopted  the 
right  construction  of  the  constitution  of  that  State  in  deciding  that  it 
did  fix  the  day  of  election  of  State  officers  (with  the  exception,  per- 
haps, of  the  attorney-general),  whether  those  State  officers  were  to  be 
elected  on  the  odd  or  even  numbered  years,  so  that  it  would  require  a 
change  in  that  constitution  to  elect  State  officers  (who  were  required  by 
the  State  constitution  to  be  regularly  elected  by  the  people  in  the  year 
1878),  on  the  Tuesday  next  after  the  first  Monday  in  November,  and 
that  the  election  of  Representatives  in  Congress,  held  in  accordance  with 
the  laws  of  the  State  on  the  second  Tuesday  in  October,  1878,  was  held 
on  the  day  on  which  alone  it  could  lawfully  have  been  held. 

In  reaching  this  conclusion  we  disregard  altogether  the  provision  for 
the  election  of  members  of  Congress  found  in  section  7,  article  12,  of 
the  constitution  of  Iowa.  That  provision  may  tend  to  show  that  it  was 
the  intention  of  the  people  of  Iowa  that  members  of  Congress  should 
be  elected  on  the  second  Tuesday  in  October  of  the  even  numbered 
years  not  Presidential,  but  the  time  of  electing  members  of  Congress 
cannot  be  prescribed  by  the  constitution  of  a  State,  as  against  an  act  of 
the  legislature  of  a  State  or  an  act  of  Congress,  and  the  amendment  to 
the  twenty-fifth  section  of  the  Revised  Statutes  of  the  United  States  is 
confined  to  States  whose  constitutions  fixes  the  day  of  election  of  State 
officers  in  said  State. 

The  only  apparent  exception  has  been  in  the  constitutions  which  have 
been  formed  by  Territories,  and  with  which  such  Territories  have  been 
admitted  into  the  Union  as  States ;  but  this,  if  it  be  a  valid  exception, 
does  not  prove  that  Territories  have  the  right  by  a  constitution  to  fix 
the  time  for  electing  Representatives  in  Congress  when  they  become 
States  :  but  the  authority  of  these  provisions  rests  on  the  sanction  and 
adoption  of  them  by  Congress  in  admitting  such  Territories  as  States, 
with  constitutions  containing  such  provisions. 

In  accordance  with  the  views  Ave  have  expressed  of  the  manner  in 
which  these  petitions  should  be  disposed  of,  we  recommend  the  passage 
of  the  following  resolutions : 

Resolved^  That  the  petitioner,  J.  C.  Holmes,  in  the  matter  of  his  pe- 
tition asking  to  be  admitted  to  a  seat  in  the  iP'orty-sixth  Congress  as  a 
Representative  from  the  eighth  Congressional  district  of  the  State  of 
Iowa,, have  leave  to  withdraw  his  i>etition. 

Resolved,  That  the  petitioner,  John  J.  Wilson,  in  the  matter  of  his 
petition  asking  to  be  admitted  to  a  seat  in  the  Forty-sixth  Congress  as 


340  DIGEST  OF  ELECTION  CASES. 

a  Kepresentative  from  the  ninth  Congressional  district  of  the  State  of 
Iowa,  have  leave  to  withdraw  his  petition. 

W.  A.  FIELD. 

J.  WAKREX  KEIFER. 

W.  H.  CALKINS. 

JOHN  H.  CAMP. 

J.  B.  WEAVER. 

E.  OVERTON,  Jr. 

Note. — I  do  not  agree  to  all  the  positions  in  the  foregoing  opinion, 
l)ut  do  agree  to  the  final  result. 

W.  H.  C. 

We  concur  in  the  conclusion  reached  above,  without  fully  indorsing 
the  reasoning  by  which  it  is  reached. 

R.  F.  ARMFIELD. 
VAN  H.  MANNING. 
SAML.  L.  SAWYER. 

I  concur  in  the  resolutions  recommended  by  the  foregoing  report,  and 
add  the  following  summary  of  my  reasons : 

1.  The  right  to  contest  the  seat  of  a  member  of  Congress  and  the 
manner  in  which  that  right  shall  be  exercised  are  both  clearly  fixed  by 
law.  The  members  of  the  Iowa  delegation  in  the  Forty-sixth  Congress 
were  chosen  by  large  majorities  on  the  8th  day  of  October,  1878,  which 
was  the  usual  day  for  holding.  State  elections,  and  was  recognized  as 
the  proper  day  by  the  masses  of  the  people.  No  one  of  the  candidates 
who  opposed  the  sitting  members  iu  that  election  has  filed  a  notice  of 
contest.  There  are,  therefore,  no  contestants  under  the  law.  If  that 
election  was  held  on  a  day  which  was  plainly  in  violation  of  the  act  of 
Congress,  although  no  notice  of  contest  was  given,  any  citizen  of  the 
State  could  have  protested  against  the  seating  of  the  delegation  theH 
chosen,  and  asked  Congress  to  declare  the  election  void.  No  such  pro- 
test has  been  filed.  The  farce  which  was  enacted  on  the  5th  day  of 
November,  1878,  was  not  an  election,  and  it  would  be  wrong  to  dignify 
it  as  such,  and  still  worse  to  recognize  its  validity  in  any  respect.  It 
clearly  did  not  give  the  petitioners  the  status  of  contestants  under  the 
provisions  of  the  act  of  Congress  regulating  contests,  and  their  petitions 
cannot  be  construed  as  coming  from  citizens  of  Iowa,  and  asking  that 
the  election  of  October  be  declared  void.  There  is  nothing,  therefore, 
in  any  aspect  of  the  case,  in  these  petitions  to  put  Messrs.  Sapp  and  Car- 
penter on  their  defense,  or  to  invalidate  in  any  way  their  right  to  their 
«eats. 

2.  The  question  whether  the  constitution  of  the  State  of  Iowa  "must 
be  amended  in  order  to  eflect  a  change  in  the  election  of  State  otficers," 
is  one  which  it  is  the  exclusive  right  of  the  State  to  decide.  The  per- 
sons to  whom  the  constitution  and  laws  of  Iowa  confide  this  decision 
have  made  it,  and  their  determination  is  a  finality,  and  is  conclusive  on 
-all  partiea.    The  committee  have  not  the  right  to  review  the  decision. 

F.  E.  BELTZHOOVER. 


HOLMES   VS.    WILSON.  341 

January  13,  1881 — Mr.  Colerick,  from  the  Committee  on  Elections^ 
submitted  the  following 

VIEWS    OF    THE    MINORITY: 

The  undersigned,  a  member  of  the  Committee  on  Elections,  submits 
the  following  minority  report: 
Three  questions  have  been  submitted  for  our  consideration: 

1.  Has  this  committee  jurisdiction  to  investigate  the  matters  referred 
to  in  the  memorials  and  papers  presented  to  us,  or  do  these  cases  come 
within,  and  therefore  to  be  governed  by,  the  provisions  of  the  statute 
of  tbe  United  States  relating  to  and  regulating  the  mode  of  procedure 
in  cases  of  contested  elections  of  members  of  the  House  of  Representa- 
tives? If  they  do  come  within  that  statute,  then  we  have  no  jurisdic- 
tion, as  it  is  conceded  that  its  requirements  have  not  been  complied 
with. 

2.  Was  the  election  that  was  held  on  the  8th  day  of  October,  1878,  in 
the  State  of  Iowa  for  Representatives  to  Congress  legal? 

3.  Was  the  election  in  the  I^ighth  and  Ninth  Congressional  Districts 
of  Iowa  on  the  5th  day  of  November,  1878,  for  Representatives  to  Con- 
gress held  on  the  day  prescribed  by  law,  aiid,  if  so,  were  the  claimants 
duly  elected  such  Representatives? 

First.  These  cases  are  not  contests  between  persons  asserting  con- 
flicting claims  to  seats  in  Congress  by  virtue  of  the  same  election.  They 
were  not  rival  candidates  at  the  same  election.  The  memorialists  dis- 
claim any  right  to  the  seats  in  controversy  under  the  election  that  was 
held  on  the  8th  day  of  October,  1878.  They  concede  that  if  Representa- 
tives to  Congress  could  have  been  legally  voted  for  at  the  election  then 
held,  Messrs.  Carpenter  and  Sapp  are  entitled  to  the  seats  now  held  by 
them,  as  they  each  received  at  said  election  a  majority  of  the  votes  cast 
in  the  respective  districts  represented  by  them  in  Congress.  They  make 
no  charges  of  bribery,  corruption^  or  fraudulent  voting.  They  predicate 
their  right  to  the  seats  in  dispute  by  virtue  of  elections  held  in  said  dis- 
tricts for  Representatives  to  Congress  at  a  different  time  than  that  at 
which  Messrs.  Carpenter  and  Sapp  were  elected.  The  claimants  do  not 
assume  or  occupy  the  position  of  contestants,  and  therefore,  in  my 
opinion,  the  statute  relating  to  contested  elections  is  not  applicable  to 
these  cases. 

The  Constitution  of  the  United  States  declares  that  "each  house 
shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members."  (Article  1,  section  5.)  It  is  provided  by  Rule  77  of  the 
House  of  Representatives,  that  "It  shall  be  the  duty  of  the  Committee 
on  Elections  to  examine  and  report  upon  the  certificates  of  election,  or 
other  credentials^  of  the  members  returned  to  serve  in  this  House,  and 
to  take  into  their  consideration  all  such  petitions  and  other  matters  touch- 
ing elections  and  returns  as  shall  or  may  be  presented,  or  come  into  question^ 
or  he  referred  to  them  by  the  Uouse.''^  By  virtue  of  this  rule,  which  was 
adopted  as  an  etficient  aid  in  executing  the  power  so  conferred  by  the 
Constitution,  the  House  adopted  resolutions  by  which  the  memorials  of 
the  claimants  in  these  cases,  and  "  all  papers  in  the  hands  of  the  Clerk  of 
the  House  relating  to  the  elections  of  Representatives  in  Congress  for  the 
eighth  and  ninth  districts  of  Iowa,"  were  referred  to  this  committee 
Under  these  resolutions,  and  the  rule  of  the  House  above  set  forth,  and 
the  provision  of  the  Constitution  above  cited,  we  are  not  merely  vested 
with  ample  power  and  complete  jurisdiction  to  investigate  these  casesy 
but  our  duty  to  do  so  is  rendered  imperative. 


342  DIGEST  OF  ELECTION  CASES. 

Second.  The  Constitution  of  the  United  States  declares  that  "  The 
times,  places,  and  manner  of  holding  elections  for  Senators  and  Kepre- 
sentatives  shall  be  prescribed  in  each  State  by  the  legislature  thereof, 
but  the  Congress  may  at  any  time  by  law  make  or  alter  sucli  regulations, 
except  as  to  the  jdaces  of  choosing  Senators."     (Article  1,  see.  4.) 

Under  this  provision  of  the  Constitution  the  legislature  of  the  State 
of  Iowa  was  authorized  and  required  to  prescribe  the  time,  place,  and 
manner  of  holding  elections  in  that  State  for  Eepresentatives  in  Con- 
gress, subject  to  the  power  of  Congress  to  alter  at  any  time  such  regula- 
tions. By  virtue  of.  this  provision  of  the  Constitution  the  legislature 
of  that  State  did  enact  a  law  prescribing  "  the  time,  place,  and  manner" 
of  holding  elections  for  Eei)resentatives,  and  designated  tbe  second 
Tuesday  in  October  as  the  time  for  the  holding  of  said  election.  Snb- 
sequently,  in  February,  1872,  Congress,  exercising  the  power  conferred 
upon  it  by  the  Constitution,  altered  the  regulations  so  prescribed  by  the 
legislature  of  Iowa,  as  to  the  time  designated  for  the  holding  of  said 
election,  by  the  following  enactment: 

The  Tuesday  after  tbe  first  Monday  in  November,  in  the  year  1876,  is  estahlwhed  a« 
the  day  in  each  of  the  States  and  Territories  for  the  election  of  Representatives  and 
Delegates  in  the  45th  Congress,  and  the  Tuesdaj*  next  after  the  first  Monday  in  No- 
vember in  every  second  year  thereafter  is  established  as  the  day  for  the  election  in  each 
of  said  States  and  Territories  of  Representatives  and  Delegates  to  the  Congress  com- 
mencing on  the  4th  dav  of  March  thereafter.  (Section  25  of  the  Revised  Statutes  of  the 
United  States,  1878.)  ' 

Afterwards  Congress  modified  said  law,  as  follows : 

That  section  25  of  the  Revised  Statutes,  prescribing  the  time  for  the  holding  elec- 
tions for  representatives  to  Congress  is  hereby  modified  so  as  not  to  apply  to  any  State 
that  has  not  yet  changed  its  day  of  election,  and  whose  constitution  must  be  amended 
in  order  to  eftect  a  change  in  the  day  of  the  election  of  State  officers  in  said  State. 
(Section  6.  chapter  l:iO,  acts  of  the  second  session  of  the  Forty- third  Congress  approved 
March  3,  1875.) 

The  question  presented  to  us  is,  Does  the  Stat«  of  Iowa  come  within 
the  exception  named  in  said  act,  as  niodified?  Must  her  constitution 
be  amended  "  in  order  to  effect  a  change  in  the  day  of  the  election  of 
State  officers  in  said  State  "  ? 

The  constitution  of  Iowa  provides  that — 

The  first  election  for  secretary  of  state,  auditor,  and  treasurer  of  state,  attorney- 
general,  district  judges,  members  of  the  board  of  education,  district  attorneys,  nunn- 
bers  of  Covgress,  and  such  State  officers  as  shall  be  elected  at  the  April  election  in  the 
year  1857,  *  *  *  shall  be  held  on  the  second  Tuesday  of  October,  1858.  (Section", 
article  12.) 

No  j)rovi8iou  exists  in  the  constitution  of  Iowa  for  any  subsequent 
election  of  the  officers  above  named,  arid  by  reason  thereof  the  duty  of 
l)roviding  for  subsequent  elections  of  said  officers  devolved  on  the  legis- 
lature of  said  State,  who  provided  therefor,  by  enacting  that  said  of- 
ficers should  be  elected  on  tiie  second  Tuesday  in  October,  and  by  vir- 
tue of  this  legislative  enactment  all  subsequent  elections  of  said  officers 
have  since  then  been  held. 

The  attorney-general  of  Iowa,  who,  prior  to  October,  1878,  was  re- 
quired by  the  governor  of  that  State  to  examine  the  various  provisions 
of  the  constitution  of  the  State,  and  render  an  opinion  as  to  the  proper 
construction  to  be  given  thereto,  so  that  it  might  be  determined  whether 
it  was  necessary  to  amend  said  constitution  in  order  to  efl:ect  a  change 
in  the  day  of  the  election  of  State  officers  in  said  State,  says,  in  the 
opinion  so  rendered  by  him : 

Our  State  constitution  does  not  fi.v  a  day  for  the  election  of  all  State  officers,  but 
it  does  in  its  very  terms  fix  the  time  for  the  election  of  governor  and  lieutenant-govei'- 
nor.     Sections  3  and  5  of  article  3  of  our  State  constitution  provide  that  the  election 


HOLMES    VS.    WILSON.  343 

for  members  of  the  general  assembly  shall  be  on  the  second  Tuesday  in  October;  and 
sections  2  and  3  of  article  4  provide  that  the  governor  and  lientenaut-govemor  shall 
be  elected  at  the  same  time  and  place  as  members  of  the  general  asseraoly. 

The  time,  then,  for  the  election  of  two  State  officers  is  definitely  fixed  by  the  terms 
of  the  constitution;  but  the  time  for  the  election  of  the  other  State  officers  is  not 
fixed,  either  by  direct  terms  or  by  necessary  implication.  Hence  it  was  by  the  con- 
stitution left  to  the  law-making  power  to  fix  the  time  of  the  election  of  oW  other  State 
officers.  The  constitution,  as  to  them,  has  only  fixed  the  time  for  the  first  election. 
The  fact  that  the  constitution  by  its  terms  fixes  the  day  of  the  election  of  members  of  the 
general  assembly,  governor,  and  lieutenant-governor,  and  only  fixes  the  day  for  the 
'* first  election  "  of  the  other  officers,  indicates  that  after  the  '^ first  election  "  the  time  for 
the  election  of  the  other  officers  was  intended  to  be  left  to  legislative  control. 

It  will  be  noticed  that,  in  addition  to  fixing  the  time  for  the  election  of  governor 
and  lientenant-governor  and  members  of  the  general  assembly  generally,  the.consti* 
tution  also  fixes  the  time  for  the  first  "election.'' 

Thus  it  will  be  seen  that  the  constitution  fixes  the  day  for  the  first  election  of  all  the 
officers  named  in  it,  and  fixes  the  time  for  all  subsequent  elections  of  governor  and  lieu- 
tenant-governor and  members  of  the  general  assembly.  In  the  article  relating  to  the 
executive,  the  time  for  the  election  of  governor  and  lieutenant-governor  is  fixed;  in 
the  article  relating  to  the  legislative  dei»artmeut,  the  time  for  the  election  of  mem- 
bers of  the  ^ent-ral  assembly  is  fixed ;  and  the  article  relating  to  the  judiciary  pro- 
vides that  the  judges  shall  be  chosen  at  the  "general  elections,"  and  article  12  pro- 
vides for  their  "first  election." 

The  "general  election"  must  refer  to  some  other  time  than  the  time  mentioned  as 
the  day  tor  the  election  of  members  of  the  general  assembly,  governor  and  lieutenant- 
governor.  No  "general  election"  is  provided  for  by  constitution:  only  the  time  for 
the  election  of  two  State  officers  and  members  of  the  general  assembly  is  fixed.  For 
some  reason  the  constitutional  convention  thought  it  proper  that  the  time  of  this 
election  be  fixed  by  constitutional  provision,  but  left  it  to  the  wisdom  of  the  general 
a.s8embly  to  say  whether  that  should  be  the  day  for  the  "general  election." 

I  think  that  the  constructiou  so  giveu  to  the  constitution  of  Iowa  by 
her  attoinej- general  is  the  correct  one. 

The  Ji rat  and  all  aubseqiicnt  elections  for .  governor,  lieutenant-gover- 
nor, and  members  of  the  legislature  were  fixed  and  prescribed  by  the 
con^titution,  which  provides  "  that  the  first  election  of  these  officers 
shall  be  held  on  tlie  secoud  Tuesday  in  October,  1859,  and  that  like 
elections  for  said  officers  shall  occur  every  two  years  thereafter,"  so  that 
these  officers  are  invariably  elected  in  the  odd  numbered  years,  while 
Kepreseiitatives  to  Congress,  and  all  officers  of  the  State,  except  the 
governor  and  lieutenant-governor,  are  elected,  by  legislative  enactment, 
in  the  even  numbered  years ;  therefore,  the  objection  that  if  it  is  held  that 
the  State  of  Iowa  does  not  come  within  the  exception  of  the  act  of  Con- 
gress providing  for  the  election  of  Representatives  to  Congress,  as  mod- 
ified, that  it  will  necessitate  the  holding  of  tico  elections  in  the  same  year 
in  that  State,  does  not  exist. 

It  is  also  urged  that,  because  the  governor  of  that  State  decided  that 
its  constitution  must  be  amended  in  order  to  elect  Representatives  to 
Congress  on  the  Tuesday  after  the  first  Monday  in  ^iJ^ovember,  the  de- 
cision so  rendered  by  him  must  be  accepted  as  the  true  construction  to 
be  placed  upon  that  instrument.  While  it  is  true  that  the  Federal  court* 
have  repeatedly  held  that  the  coustruction  placed  upon  the  constitution 
and  laws  of  the  respe<*tive  States  by  the  latest  uttei  auce-s  of  the  highest 
judicial  tribunals  thereof,  will  be  respected  and  adopted  by  the  Federal 
courts  (7  Wallace,  523;  9  Wallace,  35 :  14  Howard,  438;  23  Wallace, 
108),  yet  they  have  never,  so  far  as  I  am  aware,  extended  the  limits  of 
this  rule  so  as  to  embrace  decisions  rendered  by  any  other  than  the  judi- 
cial department  of  a  Slate.  It  is  not  claimed  that  the  highest  or  any 
othi^r  judicial  tribunal  of  the  State  of  Iowa  has  given  a  coustruction  to 
these  provisions  of  her  constitution,  aud  in  the  ab.sence  of  such  decision 
we  are  left  unrestrained  to  place  our  own  construction  thereon.  I  do 
not  think  that  the  constitution  of  Iowa  •'  must  be  amended  in  order  to 
•effect  a  change  in  the  day  of  the  election  of  the  State  officers  in  said 


344  DIGEST    OF    ELECTION    CASES. 

State,  and,  therefore,  I  believe  that  the  election  which  was  held  in  that 
State  in  October  for  Representatives  to  Congress  was  unauthorized  and 
illegal. 

Third.  It  follows,  in  my  opinion,  that  the  election  should  have  been 
held  on  the  5th  day  of  November,  1878,  in  accordance  with  the  act  of 
Congress,  and  under  the  regulations  prescribed  by  the  legislature  of  the 
State  of  Iowa  fixing  the  places  and  manner  of  holding  elections  for  such 
Kepresentatives. 

The  Eighth  Congressional  district  is  composed  of  thirteen  counties. 
At  the  election  held  on  the  8th  day  of  October,  1878,  30,5oG  votes  were 
cast,  while  at  the  election  held  on  the  5th  day  of  November,  1878,  the 
polls  were  opened  in  only  four  precincts  of  the  district,  and  these  were 
confined  to  two  of  the  thirteen  counties  composing  the  district,  and  the 
entire  vote  cast  at  said  election  was  171. 

The  Ninth  Congressional  district  embraces  26  counties,  and  the  vote 
cast  in  the  district  for  Representative  to  Congress,  at  the  election  held 
in  October,  1878,  was  38,029,  while  at  the  election  held  in  November, 
1878,  for  the  same  purpose,  the  polls  were  opened  in  only  twelve  precincts- 
of  the  disirict,  and  these  were  located  in  three  of  the  twenty-six  counties 
constituting  the  district,  and  the  entire  vote  cast  at  said  election  was 
357. 

The  elections  which  occurred  in  said  districts  on  the  5th  day  of  Novem- 
ber, 1878,  were  held  in  the  absence  of  a  proclamation  of  the  governor  of 
Iowa  directing  the  holding  of  the  same,  and  other  formalities  required 
by  the  statute  of  that  State  in  relation  to  such  elections  were  not  com- 
plied with. 

While,  in  my  judgment,  the  failure  of  the  governor  to  issue  a  procla- 
mation, and  the  omission  of  other  officers  to  perform  their  duties  would 
not  alone  invalidate  the  election,  as  their  neglect  or  refusal  to  comply 
with  their  duties  should  not  result  in  depriving  the  people  of  the  right 
to  elect  their  officers  at  the  time  fixed  by  law  for  that  purpose,  yet  it  is 
quite  evident,  from  the  very  small  vote  cast,  that  the  voters  Of  the  dis- 
trict generally  abstained  from  voting  or  taking  any  part  whatever  in 
said  election,  and  it  is  fair  to  assume  that  the  cause  of  their  failure  to 
do  so  is  alone  attributable  to  the  fact  that  they  believed  that  the  election 
which  had  been  held  in  October  for  Representatives  to  Congress  was 
authorized  by  law  and  legal,  and  that  said  subsequent  election  was  un- 
authorized and  illegal,  and  by  reason  of  this  belief,  so  created,  they 
failed  to  participate  in  said  election  and  thereby  the  will  of  the  people 
was  not  fairly  or  fully  expressed  at  the  election  held  in  November,  and 
therefore  1  do  not  think  that  the  claimants  who  base  their  right  to  the 
seats  in  dispute  under  and  by  virture  of  said  election  are  entitled  to  the 
same. 

If  the  views  above  expressed  are  correct  it  follows  that  the  seats  now 
occupied  by  Messrs.  Sapp  and  Carpenter,  respectively,  as  Representa- 
tives in  Congress  from  the  eighth  and  ninth  Congressional  districts  of 
the  State  of  Iowa,  should  be  declared  vacant,  and  accordingly  I  submit 
for  the  consideration  of  the  House  of  Representatives  the  following  res- 
olutions : 

Resolved^  That  neither  J.  C.  Holmes  nor  William  F.  Sapp  was  law- 
fully elected  to  the  Forty-sixth  Congress  from  the  eighth  Congressional 
district  of  Iowa,  nor  is  either  of  them  entitled  to  a  seat  in  said  Congress. 

Resolved,  That  neither  John  J.  Wilson  nor  Cyrus  C.  Carpenter  was 
lawfully  elected  to  the  Forty-sixth  Congress  from  the  ninth  Congres- 
sional district  of  Iowa,  nor  is  either  of  them  entitled  to  a  seat  in  said 
Congress. 

WALPOLE  G.  COLERICK. 


MERCHANT    VS.    ACKLEN.  345 


W.  B.  MERCHANT  vs.  JOSEPH  H.  ACKIiEN. 
ROBERT  O.  HERBERT  vs.  JOSEPH  H.  ACKIjEN. 

Third  Congressional.  District  of  Louisiana. 

In  these  cases  the  contestants  failing  to  file  briefs,  as  required  by  the  rules  of  the 
committee,  and  on  further  notice  failing  to  show  cause  why  their  cases  should 
not  be  dismissed  ou  account  of  such  failure  to  file  briefs  as  directed,  the  commit- 
tee report  in  favor  of  contestee. 


The  House  adopted  the  report  March  1,  1881. 


March  1,1881. — Mr.  Springer,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

REPORT: 

The  Committee  on  Ulections,  to  whom  were  re/erred  the  contested  election 
ccises  of  W.  B.  Merchant  vs.  J.  H.  AcMen  and  Robert  0.  Herbert  vs.  J. 
H.  Aclclen,  of  the  third  Congressional  district  of  the  State  of  Louisiana^ 
respectfully  beg  leave  to  report: 

That  the  notices  of  contest  and  answers  thereto  were  referred  to  the 
Committee  on  Elections  and  filed  with  the  clerk  of  said  committee  on 
the  13th  day  of  April,  1879.  Evidence  taken  in  the  above  cases  wa& 
printed  on  the  15th  day  of  January,  1880,  and  copies  of  the  same  were 
sent  to  the  contestants,  as  required  by  the  rules  of  the  committee,  by 
the  clerk  of  said  committee,  with  an  official  notice  to  prepare  briefs- 
within  twenty  days  from  the  25th  day  of  January,  1880,  to  which  na 
attention  was  given  by  said  contestants. 

On  the  21st  day  of  May,  1880,  the  clerk  of  the  committee  was  directed 
by  resolution  to  telegraph  to  Messrs.  Merchant  and  Herbert  to  appear 
before  the  committee  either  in  person  or  by  attorney  on  the  29th  day  of 
May,  1880,  and  show  cause  why  their  cases  should  not  be  dismissed  on 
account  of  the  failure  to  file  briefs  as  directed.  No  attention  was  given 
to  these  dispatches,  and  the  parties  neither  appeared  in  person  nor  by 
attorneys,  as  notified.  The  said  contestants  were  again  notified  by 
registered  letters,  on  the  22d  day  of  December,  1880,  to  appear  before 
the  Committee  on  Elections  on  the  11th  day  of  January,  1881,  and  show 
cause  why  the  cases  should  not  He  dismissed,  and  to  this  no  reply  was 
made. 

We  therefore  respectfully  recommend  the  adoption  of  the  following 
resolution : 

Resolved,  That  Joseph  H.  Acklen  was  duly  elected  and  is  entitled  to 
a  sear  in  this  House  as  a  Representative  in  the  Forty-sixth  Congress 
from  the  third  Congressional  district  of  the  State  of  Louisiana. 

Resolved,  That  Kobert  O.  Herbert  and  W.  B.  Merchant  have  leave  to 
withdraw  their  jjapers  of  contest  in  this  case. 

All  of  which  is  respectfully  submitted. 


346  DIGEST    OF    ELECTION   CASES. 


E.  MOODY  BOYNTON  vs.  GEORGE  B.  LORING. 

Sixth  Congressional  District  of  Massachusetts. 

Oontestant  charges  that  illegal  votes  were  cast  for  coutestee,  and  that  a  uuiiiber  of  bal- 
lots failed  to  designate  the  oflSce  for  which  the  candidate  was  designed.  Coutestee 
objected  to  the  specifications  of  the  grounds  of  contest  because  of  their  insuffi- 
ciency. 

Held :  That  had  the  objections  been  pressed  and  relied  upon  they  would  have  been 
sustained,  as  a  glance  at  the  nature  of  contest  discloses  its  utter  insufficiency. 

All  persons  who  could  not  read  and  write,  as  required  by  the  Constitution  of  Massa- 
chusetts, were  not  legal  voters. 

The  presumption  that  sworn  officers  of  the  law  have  done  their  duty  must  obtain  un- 
til the  contrary  clearly  appears. 

The  public  law  of  Massachusetts  created  the  sixth  Congressional  district ;  and  it  ap- 
pearing that  there  was  no  other  "sixth  district"  in  which  any  of  the  voters  of 
Groveland,  lived  except  the  "sixth  Congressional  district,"  nor  was  there  a  Repre- 
sentative office  to  be  filled  in  any  sixth  district  in  which  the  town  of  Groveland 
was  situated  except  the  sixth  Congressional  district,  ballots  cast  there  reading  ' '  For 
Representative,  sixth  district,  George  B.  Loring,  of  Salem,"  clearly  indicate  in 
writing  the  office  for  which  the  person  voted  for  is  designed. 

The  House  adopted  the  majority  report  January  21,  1881. 


December  20,  1880. — Mr.  Calkins,  from  the  Committee  on  Elections, 
submitted  the  following 

REFORT. 

The  notice  of  contest  in  this  case  is  as  follows : 

NOTICE   OF   CONTEST. 

Newburyport,  December  2,  1878. 
Dear  Sir:  You  are  hereby  notified  of  my  intention  to  contest  your  election  to  the 
Forty -sixth  Congress  from  the  sixth  Massachusetts  Congressional  district,  for  the  fol- 
lowing reasons,  viz :  To  obtain  a  recount  of  votes  cast  for  the  candidate?'  for  said  office, 
as  errors  are  believed  to  exist  in  the  returns  as  made.  It  is  known  that  ten  legal  votes 
cast  in  the  town  of  Danvers  were  rejected  in  the  count  on  pretense  of  having  been 
challenged,  but  they  should  be  counted.  It  is  believed  many  votes  in  other  places 
were  excluded  for  the  same  reason.  Names  of  persons  were  added  to  check-lists  and 
their  votes  cast  and  counted  in  the  precinct  of  which  they  were  not  residents.  Others 
were'excluded  and  not  permitted  to  vote  in  the  precinct  of  which  they  were  residents 
and  legal  voters.  Discrepancies  are  said  to  exist  in  the  returns  made  by  the  returning 
officers  of  the  representative  district.  It  is  reported  on  good  authority  that  one  man 
in  the  town  of  Amesbury  voted  twice,  and  both  votes  have  been  counted.  A  large 
number  of  votes  were  cast  in  several  towns  which  failed  to  designate  the  office  for 
which  the  candidate  was  designed.  It  is  also  reported  that  bribery  and  illegal  inter- 
ference were  practiced.  In  some  cities  the  returning  officers  did  not  register  the  voters 
in  accordance  with  law,  and  it  is  probable  many  were  registered  who  should  not  have 
been.  The  selectmen  of  Bradford,  it  is  said,  were  illegally  chosen,  and  were  therefore 
anauthorized  by  law  to  issue  a  warrant  for  an  election.  In  the  town  of  Marblehead 
there  were  three  ascertained  fraudulent  votes,  and  it  is  reported  there  were  others, 
which  nevertheless  have  been  included  in  the  returns  from  that  town.  In  the  town 
•of  Essex  there  is  said  to  be  an  error  in  the  count,  and  in  various  towns  there  seem 
to  be  discrepancies ;  and  as  the  law  does  not  provide  for  a  recount  in  towns,  it  is  neces- 


BOYNTON    VS.    LORING.  347 

sary  to  ODutrst  your  election  in  onler  t<>  olitaiu  a  recouiit.  Frauds  of  various  kinds 
are  reported  to  have  been  practiced  in  the  last  election,  hut  the  candidates  are  believed 
to  be  innocent  of  them.  To  prevent  the  recurrence  of  these  evils,  and  to  ascertain 
who  is  lci;ally  elected  to  the  office  of  Representative  to  Congress  from  the  sixth  Massa- 
chusetts district,  I  shall  claim  the  election  to  that  otnce,  and  hereby  notify  you  tu  that 
•effect. 

RespectfoUy, 

EBEN  MOODY  BOYNTON. 

The  contestee,  in  his  answer,  objects  and  excepts  to  the  specifications 
of  the  jfrouud  of  contest  because  they  are  insufficient  in  law,  and  he 
es])ei;ially  reserves  all  right  of  exceptions  for  insufficiency.  The  answer 
closes  with  a  general  traverse  of  any  and  all  facts  set  forth  in  the  notice 
of  contest.  (See  Record,  i)p.  1  and  2,  for  the  notice  of  contest  and  the 
answer.) 

Had  the  exceptions  alleged  against  the  notice  of  contest  for  insuffi- 
ciency been  pressed  before  the  committee,  the  exceptions  would  no 
doubt  have  been  sustained. 

Section  105,  Revised  Statutes  of  the  United  States,  is  as  follows : 

Skc.  lOfi.  Whenever  any  person  intends  to  contest  an  election  of  any  member  of  the 
House  of  Representatives  of  the  United  States,  he  shall,  within  thirfy  days  after  the 
result  of  such  election  shall  havebee.n  determined  by  the  officer  or  board  of  con  vassers 
a,uthorized  l»y  law  to  determine  the  same,  give  notice,  in  writing,  to  the  member  whose 
soat  he  designs  to  contest  of  his  intention  to  contest  the  same,  and  in  such  notice  shall . 

pecify  particularly  the  grounds  npon  which  he  relies  in  the  contest.     (Revi.sed  Stat^ 

ites  of  tlie  United  States,  p.  18.) 

This  section  of  the  statute  provides  for  the  procedure  in  contests  of 
this  nature. 

A  glance  at  the  notice  of  contest  discloses  its,  utter  insufficiency  and 
non-compliance  with  the  section  of  the  statute  above  set  out.  In  the 
recent  case  of  Diifly  against  Mason,  decided  by  this  House,  the  view  we 
have  taken  is  so  clearly  and  ably  set  forth  that  we  adopt  the  following 
provisions  of  that  report  as  entirely  applicable  to  the  case  at  bar. 

The  report  is  as  follows: 

McCrary,  in  bis  Law  of  Elections,  section  343,  referring  to  this  statute,  says : 

"A  good  deal  of  discussion  has  arisen  as  to  what  is  to  be  understood  by  the  words 
'  specify  particularly  the  grounds  on  which  he  relies.'  It  is  evident,  however,  that 
these  words  are  not  easily  defined  by  any  others.  They  are  as  plain  and  clear  as  any 
terms  which  we  might  employ  to  explain  them.  Cases  have  arisen  and  will  again 
arise,  giving  rise  to  controversy  as  to  whether  a  given  allegation  comes  uj)  to  the  re- 
<\uirement  of  this  statute,  and  it  must  be  for  the  House  in  each  case  to  decide  upon  the 
case  before  it.  It  may  be  observed,  however,  that  this  statute  should  receive  a  reason- 
able construction,  one  that  will  carry  out  and  not  defeat  its  spirit  and  purpose.  And 
perhai)s  the  rule  of  cf>nstruction  which  will  prove  safest  as  a  guide  in  each  case  is  this : 
A  notice  which  is  suffiitiently  specific  to  put  the  sitting  member  upon  a  proper  defense 
and  prevent  any  surprise  being  ]>racticed  upon  him  is  good,  but  one  which  fails  to  do 
this  is  bad.     (Wright  rs.  Fuller,  1  Bartlett,  152.) 

"  The  Houses  of  Congress,  when  exercising  their  authority  and  jurisdiction  to  decide 
upon  'the  election  returns  and  qualifications'  of  members,  are  not  bound  by  the  tech- 
nical rules  which  govern  i>roceedings  iu  courts  of  justice.  Indeed,  the  statutes  to  be 
fon»d  among  the  acts  of  Congress  regulating  the  mode  of  conducting  an  election  con- 
test in  the  House  of  Representatives  are  directory  only,  and  are  not  and  cannot  be 
made  mandatory  under  the  Constitution.  In  practice  these  statutory  regulations 
are  often  varied  and  sometimes  wholly  departed  from.  They  are  convenient  as  rales 
of  practice  and  of  course  will  be  adhered  to,  unless  the  House  in  its  discretion  shall 
in  a  given  case  deternune  that  the  ends  of  justice  require  a  different  course  of  action; 
They  constitute  wholesome  rules  not  to  be  departed  from  without  cause."  (iWd.,  sec- 
tion .349.) 

While  it  is  true  that  this  statute  should  receive  a  liberal  construction,  yet  it  will 
not  do  to  permit  parties  to  disregard  its  provisions.  The  House,  in  sanctioning  its 
violation  in  cases  heretofore  determined,  has  created  precedents  that  are  now  fre- 
■quently  and  pertinently  cited  to  justify  similar  infractions.  This  practice,  if  tol- 
erated, will  finally  result  in  the  virtual  abrogation  of  the  statute.  The  only  safe 
■course  to  pursue  is  to  reqtiire  at  least  a  substantial  compliance  with  its  provisiona. 


348  DIGEST  OF  ELECTION  CASES. 

We  think  that  the  notice  of  contest  in  this  case  is  clearly  iusufiScient.  It  is  too  indefi- 
nite and  uncertain  in  its  allegations.  As  was  said  in  the  case  of  Bromberg  vs.  Haral- 
son (Smith's  Digest  of  Election  Cases,  pagi^  355) — 

**  It  is  too  vagne  and  uncertain  to  l»e  good.  The  statute  requires  that  the  contestant 
in  his  notice  'shall  specify  particularly  the  grounds  u])on  which  he  relies  in  his  con- 
test.' It  is  impossible  to  conceive  of  a  speciticatiou  of  the  grounds  of  contest  broader 
or  more  general  in  its  terms.  It  fixes  no  place  where  any  act  complained  of  occurred. 
It  embraces  the  whole  district  in  o  e  sweeping  charge.  This  specification  embraces 
three  general  grounds  of  complaint,  not  one  of  which  possesses  that  particularity  essen- 
tial to  good  pleading." 

The  points  decided  in  the  Duffy  and  Mason  case  exactly  cover  the 
case  in  hand,  and  it  is  unnecessary  to  examine  any  of  the  other  points 
raised  in  the  case.  Fearing,  however,  that,  unless  the  merits  of  the 
ca«e  are  taken  up  and  examined,  injustice  may  be  done,  the  committee 
have,  at  the  expense  of  much  inconvenience  and  loss  of  time,  ex- 
amined the  questions  raised,  and  present  their  views  specifically  on 
each  point. 

CITY   OF   GLOUCESTER. 

It  is  claimed  that  the  registration  law  of  Massachusetts  requires  the 
registration  of  voters  to  cease  at  twelve  o'clock  midnight  of  the  seventh 
day  next  preceding  the  day  of  any  election.  (See  chapter  235,  section 
2,  Massachusetts  laws  of  1877 ;  see  also  section  10,  chapter  376,  acts  of 
1874  ;  also  chapter  251,  laws  of  1878,  and  chapter  233,  laws  of  1878.) 

We  are  inclined  to  take  the  view,  in  construing  these  statutes,  that 
the  registration  of  voters  does  not,  as  claimed  by  the  contestee,  "cease 
at  twelve  o'clock  midnight  of  the  day  next  preceding  the  day  of  elec- 
tion," but  that  chapter  251  of  the  laws  of  1878  extends  the  right  of  regis- 
tration under  the  conditions  therein  named  up  to  the  opening  of  the 
polls.  But  it  is  not  necessary  for  us  to  decide  this  question,  and  we  da 
not,  much  preferring  that  the  courts  of  Massachusetts  shall  first  con- 
strue their  own  statutes,  and  when  they  have  undergone  judicial  con- 
struction we  would  follow  the  decisions  of  the  courts  of  that  State. 

We  retain  the  vote  of  the  city  of  Gloucester  as  returned. 

MARBLEHEAD. 

It  is  claimed  that  William  H.  C.  Coates,  jr.,  voted  twice,  and  that  he 
A'oted  for  the  contestee,  and  that  one  of  the  ballots  was  counted.  If  the 
contention  of  the  contestant  is  correc-t,  one  vote  must  be  deducted  from 
the  contestee,  as  it  is  shown  that  when  the  selectmen,  in  counting  the 
votes,  found  the  two  ballots  together,  one  of  them  was  torn  up  and  the 
other  counted. 

The  vote  of  L.  E.  Woodfin  is  next  attacked,  on  the  ground  of  resi- 
dence. It  is  claimed  that  he  was  not  a  resident  of  Marblehead.  It 
seems  to  be  conceded  by  contestee  that  Woodfin's  vote  ought  not  to  be 
counted. 

The  three  Hathaways,  father  and  two  sons,  who  voted  at  Marblehead, 
are  attacked  on  the  ground  that  they  actually  lived  in  Salem  and  kept  up 
a  nominal  residence  in  Marblehead.  As  to  Benjamin  G.  Hathaway,  sr., 
if  it  be  conceded  that  he  voted  at  Marblehead,  it  is  not  shown  for  whom 
he  voted.  As  to  George  G.  Hathaway  and  Benjamin  G.  Hathaway,  jr.,, 
it  is  conceded  they  voted  at  Marblehead,  and  voted  for  the  contestee. 
Residence  or  domicile  is  to  a  great  extent  a  question  of  intention,  and  a 
liberal  construction  of  the  statutes  of  Massachusetts  on  that  subject,  we 
think,  will  not  justify  us  in  finding  the  two  latter-named  persons  to  be 
illegal  voters. 


BOYNTON    VS.    LORING.  349 

DANVERS. 

The  ten  challenged  votes  which  were  retnrued  from  this  town  and,  it 
is  claimed,  were  not  counted  for  the  contestant,  remain  in  some  doubt. 
Exhibit  B,  page  23  of  the  able  brief  of  contestee's  counsel,  contains  a 
certified  copy  of  the  report  of  the  executive  council  relative  to  the  count- 
ing and  tabulating  of  the  votes  in  the  sixth  Congressional  district  of 
Massachusetts.  It  would  seem,  by  an  examination  of  that  document, 
that  there  were  ten  challenged  votes  returned  from  Danvers  which  were 
cast  for  the  contestee  and  not  counted,  but  by  an  examination  of  the 
testimony  of  Josiah  Ross  and  Otis  F.  Putiiam  (pages  12  and  13  of  the 
record),  it  appears  these  ten  votes  were,  in  fact,  counted. 

The  law^  of  Massachusetts  requires  that  when  a  vote  is  challenged, 
the  voter  offering  to  vote  shall  write  his  name  upon  the  back  of  the 
ballot,  and  the  law  also  requires  that  the  party's  name  who  challenged 
him  shall  be  written  thereon  and  put  into  a  separate  envelope  and  re- 
turned as  a  "  challenged  vote  "  ;  and  the  law  also  requires  all  challenged 
votes  to  be  counted  if  the  voter  insists  upon  voting,  after  being  chal- 
lenged. This,  we  think,  was  not  done  in  these  cases.  Inasmuch  as  it 
is  not  necessary  to  decide  the  questions  involved  in  these  votes,  we  de- 
cide nothing  concerning  them. 

WEST  NEWBUEY. 

It  is  claimed  that  the  vote  of  James  Furgison  should  be  counted  for 
contestant.  We  do  not  think  the  evidence  sufficient  to  justifj"^  us  in 
counting  it  for  either  party. 

As  to  the  vote  of  Sheedy  MacNamara,  he  probably  voted  under  the 
idea  that  he  would  be  able  to  enlist  the  active  support  of  certain  promi- 
nent citizens  of  the  town  in  his  behalf  in  getting  him  discharged  from  a 
prosecution  for  the  violation  of  some  of  the  laws  of  Massachusetts  then 
pending  against  him.  If  his  testimony  is  to  be  considered  of  sufficient 
weight  to  establish  anything,  it  would  seem  to  show  that  he  applied  to 
one  or  more  of  the  selectmen  for  their  influence  in  getting  the  prosecu- 
tion dismissed,  and  oftered  for  this  influence  to  vote  a  certain  ticket. 
Giving  this  testimony  due  weight,  if  it  shows  anything  it  shows  simply 
that  he  voted  a  ticket  that  he  would  not  have  voted  had  he  been  free 
from  the  charge  thus  hanging  over  him.  We  do  not  think  we  could 
count  his  vote  for  the  contestant,  but  would  rather  throw  it  out  entirely 
as  being  tainted  and  not  a  perfectly  free  ballot. 

It  is  claimed  that  some  man  as  he  voted  said,  "  Here's  a  vote  for 
Sheedy."  It  is  also  claimed  that  Sheedy  MadsTamara  influenced  certain 
of  his  friends,  this  being  one  of  them,  to  vote  the  ticket  upon  which  the 
name  of  the  contestee  was  printed,  under  the  idea  that  by  so  doing 
Sheedy  was  to  escape  prosecution,  and  that  therefore  the  vote  of  the 
man  who  shouted  at  the  time  he  voted  "  Here's  a  vote  for  Sheedy" 
should  be  counted  for  the  contestant.  In  this  view  of  the  case  we  can- 
not agree.  The  evidence  is  entirely  insufficient  to  establish  the  fact 
that  the  man  voted,  or  if  he  did  vote,  for  whom  he  voted,  or  that  he  was 
improperly  influenced  to  vote  as  he  did. 

AMESBUEY. 

The  constitution  of  Massachusetts  prescribes  the  qualification  of  elec- 
tors. Among  the  qualifications  it  is  made  necessary  that  before  a 
person  shall  be  allowed  to  vote  he  shall  be  able  to  read  and  write  in  the 


35*)  DIGEST    OF    ELECTION    CASES. 

English  langnage  ;  and  the  registry  law  of  1874  was  designed  to  more 
effectually  carry  out  this  provision  of  the  constitution.  We  have  noth- 
ing to  do  with  the  policy  of  the  law,  but  simply  to  enforce  that  which 
the  people  of  Massachusetts  enacted  into  statutes  for  their  guidance. 
It  is  strenuously  urged  that  i^ersons  whose  names  had  been  upon  the 
registry  lists  previous  to  the  general  election  of  1878,  and  had  been 
recognized  as  voters,  and  had  voted  at  several  preceding  elections, 
could  not  be  subjected  to  the  test  of  being  required  to  read  an<l  write  in 
the  presence  of  the  registration  officers  as  a  condition  to  being  registered. 
We  cannot  agree  to  this  construction  of  the  law  relative  to  the  duties 
of  the  registration  officers.  We  think  that  it  is  a  reasonable  regulation, 
that  the  officers  in  charge  of  registration  should  see  to  it  that  persons 
offering  to  vote  possess  the  necessary  qualitications ;  and  we  cannot 
see  that,  because  persons  not  qualified  to  vote  have  been  allowed  to 
violate  the  law  on  one  or  more  occasions,  they  can  be  heard  to  plead 
such  violation  as  a  bar  to  the  enforcement  of  the  law  against  them  there- 
after. Whenever  the  disqualification  of  voters  appears,  it  is  clearly  the 
duty  of  the  registration  officers  to  refuse  to  register  them.  If  the  regis- 
tration officers  refuse  in  an  illegal  way  to  register  this  class  of  persons 
or  give  a  wrong  reason  for  their  refusal,  still  this  would  give  such  per- 
sons no  rigbt  to  vote  while  they  admit  that  they  are  clearlj-  disqualified 
under  the  constitution.  We  therefore  hold  that  all  persons  who  could 
not  read  and  write,  as  required  by  the  constitution  of  Massachusetts, 
were  not  legal  voters,  and  cannot  be  heard  to  complain  of  any  technical 
violation  of  law  by  the  registration  officers,  whereby  they  were  deprived 
of  registration,  while  admitting  at  the  same  time  that  they  did  not  pos- 
sess the  constitutional  qualifications  of  electors. 

As  we  have  said,  we  have  nothing  to  do  with  the  policy  of  the  laws 
of  Massachusetts;  her  own  citizens  must  take  care  of  that ;  all  we  have 
to  deal  with  is  the  enforcement  of  the  law  as  we  find  it. 

This  disposes  of  the  claim  of  the  contestant  of  the  voters  of  the  town 
of  Amesbury. 

HAVERHILL. 

As  to  the  forty-two  printed  ballots  with  Boynton's  name  erased, 
which  are  claimed  to  have  been  discovered  upon  a  recount  or  re-e^ami- 
nation  of  the  ballots,  we  do  not  think  the  evidence  sufficient  to  justify 
us  in  finding  that  the  votes  were  originally  thrown  for  Mr.  Boynton  and 
afterwards  corruptly  changed.  The  presumption  that  the  sworn  officers 
of  the  law  have  done  their  duty  must  obtain  until  the  contrary  clearly 
appears. 

As  to  the  defective  votes,  we  have  not  time  to  set  out  each  one  spe- 
cially, but  agree  that  eight  votes  should  be  added  to  the  sitting  mem- 
ber's returned  vote,  and  fifteen  to  the  contestant's  returned  vote.  There 
should  also  be  deducted  from  the  contestee's  returned  vote  one  other 
vote,  because  the  voter  had  received  aid  from  the  town  within  two  years, 
and  under  the  law  was  not  entitled  to  vote,  and  the  table  would  then 
stand  as  follows : 

Loriug 10,  339 

Add  defective  voteB 8 

10, 347 

Deduct  Coate's  vot« 1 

Deduct  Woodfin's  vote 1 


BOYNTON    VS.    LORING.  351 

Pednct  McNamara's  vote 1 

Deduct  pauper's  vote 1 

—  4 

10,  343 

Boynton lU.  226 

Add  defective  votes 15 

10, 241 
GROVELAND. 

The  returned  vote  of  this  town  is  stated  as  follows: 

Loring 158 

Boynton 130 

It  is  admitted  that  one  hundred  and  thirty-eight  (138)  ballots  wer© 
counted  for  the  contestee,  the  designation  upon  which  ballots  was  as  fol- 
lows :  "  For  Representative,  sixth  district,  George  B.  Loring,  of  Salem" 
It  is  claimed  that  under  the  law  of  Massachusetts  this  was  not  a  sufficient 
designation  of  the  office,  and  that  the  ballots  should  not  have  been 
counted  for  the  sitting  member  as  votes  for  the  office  of  Rei)resentative 
in  Congress  from  the  sixth  Congressional  district  of  Massachusetts. 

The  law  of  Massachusetts,  chapter  7,  section  13,  is  as  follows:  "No 
vote  shall  be  counted  which  does  not  clearly  indicate  in  writing  the  office 
for  which  the  person  voted  for  is  designed."  The  word  "writing,"  as 
it  occurs  in  that  section,  under  another  statute  of  Massachusetts  is  al- 
lowed to  include  printing,  as  well  as  any  other  mode  of  representiug 
words  and  letters.  We  do  not  think  the  law  of  Massachusetts  changes 
the  geneial  rule  with  reference  to  the  designation  which  must  appear 
upon  all  ballots  in  order  to  make  them  etfectual.  The  words,  "No  vote 
shall  be  counted  which  does  not  clearly  indicate,"  »S:c.,  adds  nothing  to 
the  general  rule  of  law,  which  requires  the  election  officers  to  reject  any 
vote  when  either  the  name  of  the  person  intended  to  be  voted  for  or  the 
office  which  the  voter  intended  the  person  voted  for  to  fill  does  not 
appear  from  the  ballot  itself.  That  is  to  say,  where  there  is  such  am- 
biguity in  the  writing  or  printing  of  the  name  of  the  person  voted  for,^ 
or  of  the  office  for  which  he  is  a  candidate,  that  it  is  impossible  to  tell 
from  the  ballot  itself  what  the  name  of  the  person  intended  to  be  voted 
for  is,  or  the  office  which  the  voter  intended  him  to  fill,  the  ballot  must 
be  rejected,  and  no  extrinsic  evidence  can  be  heard  to  supply  the 
defect. 

The  ])ublic  law  of  Massachusetts  created  the  sixth  Congressional  dis- 
trict. There  was  no  other  "sixth  district"  in  which  any  of  the  voters 
ofGroveland  lived  except  the  "sixth  Congressional  district,"  nor  did 
they  live  in  any  other  sixth  district,  nor  was  there  a  Representative  office 
to  be  filled  in  any  sixth  district  in  which  the  town  of  Groveland  was 
situated  except  the  sixth  Congressional  district. 

So  it  seems  to  us,  in  the  light  of  the  public  law  of  Massachusetts 
creating  this  sixth  Congressional  district,  and  the  geographical  loca- 
tion of  Groveland,  and  the  ballot  itself,  with  the  designation  of  "  Rep- 
resentative sixth  district,"  all  considered  together,  makes  the  designa- 
tion sufficient  on  the  ballot  to  indicate  the  office  which  the  voter  de- 
signed when  he  cast  the  ballot,  and  is  within  the  true  interpretation 
and  meaning  of  the  law  of  Massachusetts,  when  it  declares  that  "the 
ballot  shall  clearly  indicate  the  office  for  which  the  person  voted  for  is 
designed." 


352  DIGEST  OF  ELECTION  CASES. 

Judge  Cooley,  in  his  work  on  Constitutional  Limitations,  lays  down 
the  following  general  proposition  as  being  the  law  relating  to  this  sub- 
ject : 

Every  ballot  should  be  complete  in  itself,  and  ought  not  to  require  extrinsic  evi- 
dence to  enable  the  election  officer  to  determine  the  voter's  intention.  Perfect  cer- 
tainty, however,  is  not  required  in  these  cases.  It  is  sufficient  if  an  examination 
leaves  no  reasonable  doubt  upon  the  intention,  and  technical  accuracy  is  never  re- 
quired in  any  case.     The  cardinal  mle  is  to  give  effect  to  the  intention  of  the  vot«r 

■whenever  it  is  not  left  in  uncertainty. 

»  «  *'•  •  *  • 

The  name  on  the  ballot  should  be  clearly  expressed  and  ought  to  be  given  fully. 
Errors  in  spelling,  however,  will  not  defeat  the  ballot  if  the  sound  is  the  same ;  nor 
abbreviations,  if  such  are  in  common  use  and  generally  understood,  so  that  there  can 
be  no  reasonable  doubt  of  the  intent.     *     *    » 

As  to  extrinsic  evidence  and  what  may  be  considered  by  the  election 
board  in  determining  from  the  ballot  who  and  what  was  intended  by 
the  voter,  the  author  says : 

We  think  evidence  of  such  facts  as  may  be  called  the  circumstances  surrounding  the 
election,  such  as  who  were  the  candidates  brought  forward  by  the  nominating  con- 
vention, whether  other  persons  of  the  same  names  resided  in  the  district  from  which 
the  officer  was  to  be  chosen ;  and,  if  so,  whether  they  were  eligible  or  had  been  named 
for  the  office  *  *  *  is  admissible  for  the  purpose  of  showing  that  an  imperfect 
ballot  was  meant  for  a  particular  candidate,  unless  the  name  is  so  different  that  to 
thus  apply  it  would  be  to  contradict  the  ballot  itself,  or  unless  the  ballot  is  so  defect- 
ive that  it  fails  to  show  any  intention  whatever ;  in  which  cases  it  is  not  admissi- 
ble.— Cooley's  Constitutional  Lim.,  609  et  aeq. 

See,  also,  McCrary  on  Elections,  section  395. 

There  are  other  matters  alluded  to,  botli  by  the  counsel  for  contest- 
ant and  counsel  for  contestee — matters  which  are  of  grave  importance, 
and  will,  at  the  proper  time  and  place,  evidently  receive  the  considera- 
tion which  their  gravity  demands;  but  we  do  not  consider  it  our  duty 
to  decide  the  questions  thus  urged  upon  us,  and  unanimously  agree 
that  they  cannot  affect  the  question  at  issue  between  the  two  parties  in 
this  contest. 

We  are  also  of  opinion  that  the  tabulated  statement  hereinbefore 
givet  shows  that  the  sitting  member  is  entitled  to  retain  his  seat. 

We  therefore  recommend  the  adoption  of  the  following  resolution : 

Resolved^  That  George  B.  Loring  is  entitled  to  retain  his  seat  in  the 
Forty-sixth  Congress  as  a  member  from  the  sixth  Congressional  district 
of  the  State  of  Massachusetts,  and  that  E.  Moody  Boynton  is  not  enti- 
tled thereto. 

W.  H.  CALKINS. 

We  concur  in  the  result  declared  by  the  foregoing  report. 

SAM.  L.  SAWYER. 
W.  G.  COLEKICK. 
W.  M.  SPRINGER. 

E.  C.  PHISTER. 
EMORY  SPEER. 
VAN  H.  MANNING. 
R.  F.  ARMFIELD. 

J.  WARREN  KEIFER. 

F.  E.  BELTZHOOVER. 
JOHN  H.  CAMP. 

E.  OVERTON,  Jr. 
I  agree,  except  as  to  the  opinion  expressed  on  the  registration  law. 
The  vote  of  the  person  who  received  aid  from  the  town  within  two 
years,  but  who  was  not  receiving  aid  at  the  time  of  the  election,  should 
be  counted. 

W.  A.  FIELD. 


BOYNTON    VS.    LORING.  353 

December  21, 1880. — Mr.  Weaver,  from  the  Committee  on  Elections, 
submitted  the  following  as  the 

VIEWS    OF    THE    MINORITY: 

I  cannot  concur  in  the  report  of  the  majority  of  the  committee  in  this 
case. 

Contestee  claims  his  election  by  102  majority. 

The  report  of  the  majority  of  the  committee  sustains  this  claim  and 
is  clearly  wrong. 

At  Marblehead,  seven  illegal  votes  were  counted  for  contestee,  to  wit, 
two  votes  cast  by  W.  H.  C.  Coates,  the  votes  of  the  three  Hathaways, 
one  of  two  folded  ballots,  and  the  admitted  illegal  vote  of  Woodfin. 

I  think  the  testimony  is  ample  to  sustain  the  charge  of  illegality  as 
to  all  these  votes. 

The  evidence  of  John  E.  Davis  and  others,  pages  7,  10,  and  12  of  the 
record,  establishes  the  fact  that  Coates  voted  two  separate  ballots,  and 
the  ballots  cast  by  him,  in  my  opinion,  cannot  be  confounded  with  the 
folded  tickets  found  in  the  box. 

As  to  the  three  Hathaways,  the  testimony  clearly  shows  that  they  had 
no  residenc(!  at  Marblehead  and  were  not  entitled  to  vote  there.  They 
nevertheless  did  all  three  vote  for  contestee.  (See  pages  16  to  19  and 
36  of  the  record.) 

danvers. 

At  this  polling  place  ten  votes  for  contestant  were  challenged,  but 
the  challenges  were  not  made  good.  These  votes  were  not  counted,  as 
they  should  have  been,  for  contestant. 

It  is  clear  from  the  official  report  of  the  ex-council  of  Massachusetts 
(see  record,  page  23),  relative  to  the  counting  and  tabulating  the  vote 
of  the  6th  district,  that  these  votes  were  left  out  of  those  counted  for 
contestant. 

WEST  NEWBURY. 

James  Ferguson's  vote  was  offered,  and  refused  on  the  ground  that, 
although  his  taxes  were  all  paid,  his  name  hj  a  clerical  error  and  omis- 
sion was  left  off  the  list.  As  the  law  quoted  from  Massachusetts  stat- 
utes by  contestant's  counsel  permits  "to  correct  a  clerical  error  or 
omission"  in  the  townships  even  on  election  day  and  after  the  opening 
of  the  polls,  therefore  his  name  should  have  been  replaced  and  his 
offered  vote  must  be  counted  for  the  contestant.  The  case  is  remarka- 
ble, as  it  was  applied  to  a  well  known  and  unexceptionable  citizen  voter, 
a  farmer  who  had  paid  his  taxes,  and  whose  farm  adjoined  Mr.  Boyn- 
ton's.  He  publicly  expressed  his  desire  to  vote  for  Mr.  Boynton,  and 
no  reason  has  been  assigned  for  his  disfranchisement,  the  selectmen 
now  acknowledging  their  error.  It  is  in  the  uncontradicted  testimony 
of  Ferguson  that  two  other  citizens,  named  Heath  and  Dorkins,  desir- 
ing to  vote  for  Boynton,  were  disfranchised  in  the  same  manner  the 
same  day,  and  as  the  contestee  was  present  in  counsel  and  did  not  at- 
tempt to  rebut  it,  their  votes  should  also  be  counted  for  the  contestant. 

The  case  of  Sheedy  McNamara,  for  twenty-eight  years  a  voter  in  that 
town  :  was  made  to  vote  against  his  party,  his  friends,  and  his  conscience 
on  fear  of  three  mouths'  solitary  confinement  for  simple  drunkenness, 
third  offense  (see  statutes  of  Massachusetts,  quoted);  a  man  of  educa- 
tion, as  claimed  by  counsel  of  contestant,  who  had  been  a  leader,  many 
H.  Mis.  58 23 


354  DIGEST    OP   ELECTION   CASES. 

years  back,  among  the  Irish  citizens,  having  fallen  into  the  evil  habit 
of  drink,  was  thus  placed  within  reach  of  the  severe  laws  of  Massachu- 
setts. Receiving  information  that  the  warrant  was  held  over  him,  when 
asked  by  a  former  town  officer,  and  a  Republican  of  influence,  why  he 
and  the  Irish  were  going  to  vote  for  the  contestant's  party,  replied  that 
jf  they  would  quash  the  indictment,  and  not  arrest  him  on  election  day^ 
he  would  vote  the  Republican  ticket. 

The  promise  was  made,  and  subsequently  he  applied  to  the  select- 
men to  protect  him  from  the  serving  of  the  warrant  on  election  day, 
promising  to  vote  their  ticket  and  use  influence  with  his  friends  ta 
vote  the  same  for  him.  One  of  the  selectmen  asked  him  how  many 
votes  he  could  get.  He  replied,  he  might  get  more  than  he  expected. 
They  told  him  to  come  down,  and  they  would  ask  the  sherift*  not  ta 
arrest  him ;  one  selectman  saying  he  would  speak  to  the  officer  not  to 
arrest  him,  and  the  other  nodded  assent.  McNamara  voted  an  open 
Republican  ballot  in  the  presence  of  the  people,  holding  it  up,  and  say- 
ing, ''It  weighs  ten  pounds,  for  I  am  voting  against  my  conscience."^ 

He  testifies  that  he  voted  for  Loring  but  desired  to  vote  for  Boynton. 
His  brother-in-law  did  the  same,  saying,  as  he  voted  his  own  ballot,  to 
the  selectman,  "Here  is  a  vote  for  Sheedy."  If  these  voters  were  good 
enough  to  vote  for  the  Republican  candidate  under  the  terror  of  a  dun- 
geon, such  influence  to  change  his  vote  is  a  crime  against  the  freemen 
of  Massachusetts.  We  trust  it  is  never  to  be  repeated  in  a  land  that 
has  done  so  much  for  freedom  and  humanity.  Taking  their  two  votes^ 
from  Loring  and  adding  to  those  that  have  preceded,  counts  a  change 
of  seven  votes  in  favor  of  contestant.  To  what  further  extent  this  pe- 
culiar species  of  intimidation  was  carried  on  at  this  polling  place  will 
probably  never  be  known.    We  next  come  to 

AMESBUEY. 

The  evidence  shows  that  the  large  woolen  mills  had  been  idle  for  a 
few  years,  and  that  something  more  than  a  thousand  hands  were  unem- 
ployed, with  its  resulting  poverty  and  misery. 

The  selectmen  did  not  give  proper  opportunity  for  the  registry  of 
names  as  by  the  laws  cited  in  this  case  required;  they  enrolled  the 
names  of  several  who  were  disqualified  by  the  educational  and  pauper 
clause  when  men  promised  to  vote  their  Republican  ticket,  and  refused 
to  register  or  permit  to  vote,  among  others,  fifty-five  old  voters  at  one 
time  whose  taxes  were  paid  and  who,  being  old  voters,  had  previously 
exercised  their  legal  rights.  The  statutes  of  Massachusetts,  disfran- 
chising the  illiterate,  permit  voters  who  were  such  at  the  time  the  law 
was  adopted  to  vote.  Neither  can  any  taxpayer's  name  be  dropped 
from  the  voting-list  without  examining  and  ascertaining  his  disqualifi- 
cation. 

This  was  done  to  a  degree  which  might  throw  out  the  entire  vote  of 
Amesbury,  giving  fifty -two  votes  to  the  contestee;  or  if  the  votes  of 
these  old  voters,  whose  taxes  the  selectmen  received  and  then  disfran- 
chised, be  counted,  with  three  illegal  votes  deducted  from  Loring,  it 
gives  55  votes  to  the  contestant.  It  appears  probable  from  the  evidence 
that  the  usual  liberal  previous  conduct  of  elections  would  have  secured 
the  contestant's  election  without  further  reference  to  any  town  in  the 
district,  and  your  committee  submits  it  is  his  duty  to  check  the  severity, 
injustice,  and  illegality  practiced  upon  these  poor  men,  waiting  for 
years  in  misery  for  the  mills  to  start. 

The  Statutes  of  Massaschusetts,  constitutional  amendment,  section  13, 
chai>ter  7,  page  57 : 


BOYNTON    VS.    LORING.  355 

"Art.  XX.  I^o  person  shall  have  the  right  to  vote  or  be  eligible  to 
office  under  the  constitution  of  this  commonwealth  who  shall  not  be 
able  to  read  the  constitution  in  the  English  language  and  write  his 
name;  provided,  however,  that  the  pros'isions  of  this  amendment  shall 
not  apply  to  any  person  prevented  by  a  physical  disability  from  com- 
plying with  its  requirements,  nor  to  any  person  who  now  has  the  right 
to  vote,  nor  to  any  person  who  shall  be  sixty  years  of  age  or  upwards 
at  the  time  this  amendment  shall  take  effect.*'    Adoi^ted  1857. 

HAVERHILL. 

In  the  city  of  Haverhill,  it  is  claimed  by  brief  of  counsel  for  contest- 
ant, important  changes  were  made  in  the  telegraphic  report  of  the  result. 
We  only  know  that  the  official  recount  and  examination  of  the  ballots 
occurred  Xovember  8, 1878.  At  this  second  examination  the  discrepancy 
between  the  ballots  for  governor  and  for  Congressman  was  rendered 
still  more  suspicious  by  the  discovery  of  forty-two  printed  ballots  that 
had  been  deposited  in  the  boxes  for  Mr.  Boynton  with  his  name  erased 
by  pencil,  left  blank,  and  no  other  name  substituted.  As  there  were, 
besides,  both  a  Democratic  and  Republican  candidate  running,  it  is  mani- 
fest a  voter  desiring  to  defeat  Mr.  Boynton  by  using  his  pencil,  after 
erasure  would  have  substituted  the  name  of  some  opponent,  as  time 
would  have  permitted  the  individual  voter.  If  the  votes  were  tampered 
with  about  supper-time  on  the  evening  of  election,  as  suggested  by  coun- 
sel in  first  brief,  and  when  the  telegraphic  reports  he  claims  showed  the 
change  that  night,  it  is  a  wrong  that  ought  to  be  righted.  Mr.  Joseph 
Ridgway's  testimony  is  important  on  account  of  his  experience  as  al- 
derman and  poll-inspector,  and  he  is  at  present  one  of  the  school  board 
of  that  city.  He  examined  the  erased  ballots  and  assisted  in  the  second 
official  recounting.  He  was  the  legislative  candidate  on  the  Democratic 
ticket,  and,  having  charge  of  the  vote-distributors  for  the  Democratic 
and  Greenback  party  in  the  city  of  Haverhill,  had  personal  and  official 
knowledge  from  the  messengers  in  every  ward,  and  visited  each  ward 
personally  during  the  election-day.  He  swears  he  heard  of  no  such  bal- 
lots being  voted,  or  blank  erasues,  as  substitution  would  count  doubly; 
therefore,  such  wholesale  destruction  seems  a  fraud.  Owing  to  the  in- 
tensity of  the  opposition  indicated  in  this  election,  we  incline  to  the 
belief  that  these  forty-two  ballots  were  voted  without  any  erasure.  As- 
suming that  we  are  correct  in  our  views  herein  expressed,  the  table  will 
stand  as  follows : 

Loring 10,339 

Add  defective  votes 8 

10,347 
Deduct  illegal  vote  at  Marblehead 7 

10,340 
Deduct  at  West  Newbury : 

Sheedy  McNamara   1 

Sheedv's  brotber-in-law 1 

—  2 

10,338 

Boyntou 10,226 

Add  defective  votes 15 

10,241 

Add  for  Danvers,  challenged  votes 10 

Add  West  Newburv 3 


356  DIGEST  OF  ELECTION  CASES. 

Add  Amesbury ^ 55 

Add  Haverhill 42 


10, 351 

This  calculation  clearly  elects  contestant,  to  say  nothing  of  the  fact 
that  138  ballots  were  counted  for  contestee  at  Groveland,  the  desig- 
nation upon  which  was  as  follows:  "For  Representative  sixth  district, 
George  B.  Loring,  of  Salem."  It  is  claimed,  and  we  think  with  much 
propriety,  that  under  the  laws  of  Massachusetts  this  was  not  a  sufficient 
designation  of  the  office,  and  that  the  votes  should  not  have  been  counted. 
The  law  of  Massachusetts,  chapter  7,  section  13,  is  as  follows:  "No  vote 
shall  be  counted  which  does  not  clearly  indicate  in  writing  (or  printing) 
the  office  for  which  the  person  voted  for  is  designated."  The  plain 
meaning  of  this  law  is  this:  the  office  must  be  "clearly  indicated"  on 
the  ballot  itself,  and  cannot  be  made  to  appear  by  other  and  extrinsic 
testimony.  The  law  is  clearly  mandatory,  and  the  counting  of  such  bal- 
lots is  inhibited. 

There  are  ten  legislative  districts  numbered  six  in  Massachusetts  to 
which  these  ballots  could  as  readily  be  made  to  apply.  There  are  three 
sixth  districts  within  the  sixth  Congressional  district.  (See  testimony 
of  Joseph  Ridgeway,  pages  87,  88,  of  the  record.) 

We  now  approach  another  proposition  of  vital  importance  both  to  the 
State  of  Massachusetts,  to  the  country,  and  to  the  contestants ;  and  I 
will  embody  the  observations  of  the  learned  counsel  for  contestant,  Gen- 
eral Butler,  in  relation  to  this  matter,  and  make  them  my  own.  They 
state  the  propositions  and  facts  with  great  clearness  and  force. 

DISFRANCHISEMENT   OF    CITIZENS. 

By  an  amendment  to  the  constitution  of  Massachusetts,  Article  XX 
(page  38,  General  Statutes),  adopted  the  3d  day  of  May,  1857,  it  is 
provided  as  follows: 

No  person  shall  have  a  right  to  vote  or  be  eligible  to  oflSce,  under  the  constitution 
of  this  commonwealth,  vrho  shall  not  be  able  to  read  the  constitution  in  the  English 
language,  and  write  his  name. 

Then  follows  the  provision  as  to  physical  disability  and  age. 

This  article  was  adopted  by  the  legislature  of  1854-'55,  and  ratified 
by  the  people  on  the  23d  day  of  May,  1857,  by  a  vote  of  23,883  in  favor, 
and  13,74G  against,  out  of  some  150,000,  the  then  voters  of  Massachu- 
setts. 

Under  it  the  most  learned  professors  of  Europe,  coming'  here  and 
taking  upon  themselves  the  duties  and  privileges  of  citizens,  could  not 
vote,  unless  they  were  able  to  read  English.  It  attracted  no  attention, 
and  has  not  been  enforced  by  a  statute  until  since  1874,  when  the  domi- 
nant party  in  Ma8sa<5husett8  began  to  fear  for  their  majority. 

By  the  official  report  of  the  Masachussetts  census  bureau  of  the  State 
census,  taken  in  1875,  it  appears  that  there  were  44:9,68()  taxed  persons, 
called  "ratable  polls,"  i.  e.,  of  21  years  of  age  and  upwards,  of  which 
number  2,539  were  "idiotic"  and  "insane,"  3,578  were  convicts,  2,383 
were  paupers,  79,130  were  aliens ;  and  31,444  aliens,  and  3,153  native 
Dorn,  total  34,597,  were  classed  under  the  head  of  "  illiterate,"  which 
means  not  able  to  read  the  constitution  in  the  English  language  and 
write  their  names.  It  also  appears  that  there  were  351,113  names  on 
the  voting-lists. 

Now,  the  population  of  Massachusetts  in  1870  was  1,457,352  by  the 
United  States  census.    The  whole  population  by  the  census  of  1875  was 


BOYNTON    VS.    LORING.  357 

1,651,652,  making^  an  increase  of  194,300,  or  13.33  percentage  of  gain. 
Assuming  that  the' percentage  of  increase  of  population  from  May,  1875, 
to  November,  1878,  was  the  same  as  it  was  from  1870  to  1875  (in  the  pro- 
portion of  the  lengths  of  the  two  i^eriods  of  time  covered  by  tliese  dates), 
although  in  fact  the  gain  would  be  considerably  greater,  and  that  there 
would  bii  a  corresponding  increase  in  the  number  of  ratable  polls,  of 
voters,  and  of  each  of  the  j^rohibited  classes,  we  have  the  following 
table,  showing  first  the  statistics  under  these  several  heads,  as  reported 
in  the  Massachusetts  census  for  1875,  and  secondly  the  estimated  gain 
of  each  class  up  to  November,  1878  (three  and  a  half  years),  on  a  calcu- 
lated increase  of  9  per  cent,  for  that  period  : 

May,  I87b.— Table. 

Ratable  polls,  t.  e.,  males  above  twenty  years 449, 686 

Number  of  voters,  native-born 281,842 

Number  of  voters,  foreign-born 69,271 

351,113 

Number  of  illiterate,  naturalized 13,478 

Number  of  illiterate,  aliens 17,966 

31,444 

Number  of  illiterate,  native-born 3, 153 

Number  of  other  aliens 61, 170* 

Number  of  male  paupers 2,388 

Number  of  male  couvicts 3, 578 

Number  of  idiotic  and  insane 2, 539 

455, 385 
Number  supposed  to  be  under  21  years  old 5, 699 

449,666 

November,  1878. — Table  showing  increase. 

Ratable  polls 490,168 

Number  of  voters,  native-born 307, 208 

Number  of  voters,  foreign-born 75, 505 

382, 713 

Number  of  illiterate,  naturalized 14, 691 

Number  of  illiterate,  aliens 19, 583 

34,274 

Number  of  illiterate,  native-bom 3, 437 

Number  of  other  aliens ^ .• 66, 675 

Number  of  male  p.iupers 2, 603 

Number  of  male  couvicts 3,900 

Number  of  idiotic  and  insane 2, 768 

496, 370 
Number  supposed  to  be  under  21  years  old 6, 212 

490, 158 

By  the  Massachusetts  census  of  1875  the  number  of  ratable  polls  was 
449,687.  Adding  13^  ])ercentage  of  gain  from  1875  to  November,  1878, 
gives  us  490,158  ratable  polls  at  the  time  of  ihis  election.  Applying 
the  same  percentage  to  the  illiterate  native-born,  aliens,  paupers,  con- 
victs, idiotic,  aud  insane,  we  should  deduct  from  said  ratable  polls 
113,657,  leaving  376,501  ratable  polls  November,  1878.  Allowing  four 
per  cent,  for  stay-at-homes,  15,060,  leaves  361,441,  of  whom  but  256,332, 
being  but  67  per  cent.,  voted,  one-third  of  the  voting  population  being 
disfranchised. 

The  whole  number  of  votes  cast  in  the  State  in  the  election  of  1878 
was  256,332. 

From  this  table  may  be  deduced  the  following  startling  facts: 

That  of  the  376,.j0l'citizens  of  the  United  States,  made  so  by  the  14th 
amendment  (allowing  that  four  per  cent,  of  the  total  vote  of  the  State 
remained  away  from  the  polls),  136,859  were  tlisfranchised  from  other 


358  DIGEST  OF  ELECTION  CASES. 

causes  than  criminality,  idiocy,  and  insanity,  the  causes  being  what  are 
known  as  "illiteracy,"  failure  to  pay  a  tax,  and  pauperism. 

By  section  1,  chapter  376,  of  the  law  of  1874,  every  male  citizen  twenty- 
one  years  of  age  and  upwards  (except  paupers,  persons  under  guardian- 
ship, and  persons  excluded  by  "article  twenty  of  the  amendments  to 
the  Constitution),  who  has  resided  in  the  State  one  year,  and  within 
the  city  or  town  in  which  he  claims  a  right  to  vote  six  months  next  pre- 
ceding any  election  of  city,  town,  county,  oY  State  officers,  or  of  Eepre- 
sentatives  to  Congress,  or  electors- of  President,  and  Vice-President, 
and  who  has  paid  by  himself,  his  parent,  master,  or  guardian,  a  State 
or  county  tax,  assessed  upon  him  in  this  State  within  two  years  next 
preceding  such  election,  and  every  citizen  exempted  from  taxation,  but 
otherwise  qualified,  shall  have  a  right  to  vote  in  all  such  elections;  and 
no  other  person  shall  have  such  right  to  vote." 

Thus  it  will  be  seen  that,  by  the  constitution  and  LiAvs  of  Massachu- 
setts, 105,109  persons  are  disfranchised,  in  contravention  of  the  1st  sec- 
tion of  the  14th  amendment  to  the  Constitution  of  the  United  States, 
which  was  adopted  by  the  State  of  Massachusetts  prior  to  the  21st  day 
of  July,  1868,  when  it  was  declared  adopted  by  resolution  of  Congress, 
which  ratification  has  never  been  withdrawn  by  her,  and  so  is  at  least 
binding  upon  Massachusetts.    This  section  is  as  follows: 

All  persons  boru  or  uaturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States,  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States,  nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

Kow,  is  the  right  to  vote  one  of  the  "privileges  or  immunities"  of  a 
citizen  of  the  United  States  ?  That  is  answered  by  section  2  of  the  same 
article,  which  provides  a  penalty  against  the  State  for  depriving  a  citi- 
zen of  a  right  to  vote  at  any  election,  as  follows  (see,  also,  23  Pick.  E., 
308,  where  it  is  decided  to  be  a  privilege,  per  Shaw,  C.  J.) : 

But  when  the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice-President  of  the  United  States,  Kepresentatives  in  Congress,  the  executive 
and  judicial  officers  of  a  State,  or  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  yiars  of  age  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in  rebellion,  or  other  crimes, 
the  basis  of  representation  shall  be  reduced  in  the  proportion  which  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of  such  citizens  twenty-one  years 
of  age  in  such  State. 

By  chapter  3,  General  Statutes  of  Massachusetts,  on  construction  of 
statutes,  it  is  enacted  thjit  the  word  "  spendthrift"  shall  include  any 
person  who  is  liable  to  be  put  under  guardianship  on  account  of  excess- 
ive drinking,  gaming,  idleness,  or  debauchery. 

By  chapter  109,  section  9,  of  the  General  Laws  of  Massachusetts, 
when  any  person,  by  excessive  drinking,  gaming,  idleness,  or  debauch- 
ery of  any  kind,  so  spends,  wastes,  or  lessens  his  estate  as  to  expose 
himself  or  his  family,  the  mayor  and  aldermen,  or  the  selectmen  of  the 
city  or  town  of  which  such  spendthrift  is  an  inhabitant  or  resident,  or 
upon  which  he  is  or  may  become  chargeable,  may  present  a  complaint 
and  have  him  put  under  guardianship,  according  to  the  provisions  of 
that  chapter. 

And  all  those  citizens  of  the  United  States,  i.  e.,  those  who  cannot  read 
and  write,  who  have  not  paid  their  taxes,  or  are  so  unfortunate  as,  at 
some  time  in  their  lives,  to  have  required  aid  from  the  public,  are,  by 
the  laws  in  force  in  Massachusetts,  deprived  of  their  vote,  while  idiots 
and  insane  persons,  where  not  under  guardianship,  have  full  right  to 


BOYNTON    VS.    LORING.  359 

vote ;  and  we  Lave  a  school,  supported  by  the  State,  in  which  "  idiotic 
and  feeble-minded  youth"  are  taught  to  -read  and  write,  and  thus  be 
<iualitied  to  vote  under  the  equal,  just,  and  discriminating  laws  of  Mas- 
sachusetts. 

Leaving  out  the  idiots,  insane,  aliens,  and  convicts,  it  appears  demon- 
strable that  105,109  citizens  of  the  United  States  have  their  immunities 
and  privileges  abridged,  and  are  deprived  of  their  right  to  vote  in  that 
State. 

We  have  already  commented  upon  the  testimony  which  we  have  ex- 
amined in  regard  to  the  towns  of  Amesbury  and  West  Newbury ;  how 
these  laws  were  enforced  to  the  opi)ression  and  disfranchisement  of  the 
humbler  class  of  citizens,  and  with  the  purpose  of  compelling  them  to 
vote  according  to  the  dictates  of  the  dominant  party.  This  mode  of 
carrying  elections  in  Massachusetts  is  termed,  by  a  newspaper  of  the 
largest  circulation  of  any  daily  newspaper  in  the  State,  which  a<l  vocated 
the  Republican  candidates  in  this  election,  and  recommended,  as  civil- 
ized bulldozing. 

We  have  also  shown  that  if  the  fourteenth  amendment  to  the  Consti- 
tution of  the  United  States  is  put  into  effect,  and  the  representation  of 
Massachusetts  is  apportioned  by  a  reduction  "  in  the  proportion  which 
the  number  of  such  male  citizens  shall  bear  to  the  whole  number  of 
such  citizens  twenty-one  years  of  age,"  it  would  reduce  the  number  of 
Representatives  from  eleven  to  eight. 

Xow,  as  the  total  vote  of  this  district  (23,275)  is  nine  and  eight  one- 
hundredths  (9.08)  per  cent,  of  the  total  Congressional  vote  of  the  State, 
the  same  percentage  of  the  whole  number  of  citizens  disfranchised  in 
the  State,  viz,  105,109,  will  approximate  v^ery  nearly  the  number  dis- 
franchised in  the  sixth  Congressional  district,  which  we  find  to  be 
1,646  for  "  illiteracy"  and  11,475  for  failure  to  pay  a  tax,  making  a  total 
of  13,121 — (Considerably  more  than  half  of  the  total  vote  thrown  in  the 
district,  or  2,782  s^otes  more  than  were  cast  for  any  candidate. 

Shall  the  State,  by  its  laws  and  their  execution,  be  allowed  to  dis- 
franchise so  many  of  its  citizens,  and  have  the  benefit  of  the  representa- 
tion of  these  tlisfranchised  citizens  in  Congress  and  in  the  Electoral 
College  under  the  present  apportionment?  Let  the  law  under  which 
this  very  apportionment  is  made  answer. 

Section  6,  chapter  11,  of  the  acts  of  1872,  approved  February  2,  1872, 
17  Stat.,  page  28,  under  which  the  apportionment  is  made,  enacts^— 

That  should  any  State,  after  the  passage  of  this  act,  deny  or  abridge  the  right  of 
any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age  and  citizens 
of  the  United  States,  to  vote  at  any  election  named  in  the  amendments  to  the  Consti- 
tution, article  fourteen,  section  two,  except  for  participation  in  the  rebellion  or  other 
•crime,  the  number  of  Representatives  apportioned  in  this  act  to  such  State  shall  be 
reduced  in  the  proportion  Avhich  such  male  citizens  shall  have  to  the  whole  number 
•of  male  citizens  twenty-one  years  of  age  in  such  State. 

This  answers  the  question,  and  also  whether  the  phrase  in  the  Con- 
stitution, article  14,  of  the  amendments,  "  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  of  citizens,"  &c.,  is  aimed 
against  a  law  depriving  them  of  the  right  to  vote.  It  also  settles  the 
question  which  is  sometimes  raised,  whether  a  constitutional  provision 
can  execute  itself  without  being  "  enforced  by  api)ropriate  legislation." 

To  enforce  this  law — and  all  laws  ought  to  be  enforced,  especially 
those  that  guard  the  rights  of  the  citizen — will  substantially  diminish 
Massachusetts  from  eleven  to  eight  Representatives,  and  from  thirteen 
electoral  votes  to  ten. 


360  DIGEST  OF  ELECTION  CASES. 

Another  question  may  be  raised :  It  will  be  observed  that  this  section 
says,  "That  should  any  State,  after  the  passage  of  this  act,  deny  or 
abridge  the  rights,"  &c. 

It  may  be  objected  that  the  laws  under  which  the  State  elections  are 
held  in  Massachusetts  do  not  appear  to  have  been  made  after  the  pas- 
sage of  this  act.  But  if  the  committee  will  turn  to  the  law  before  cited 
(General  Laws  of  1874,  page  283,  chapter  376),  they  will  fiud  that  the 
law  imposing  these  restrictions  was  passed  June  29th  of  that  year,  and 
was  an  act  of  the  State,  therefore,  two  years  after  the  apportionment 
act  of  Congress.  In  other  words,  the  State  took  advantage  of  the  ap- 
portionment according  to  the  whole  number  of  people  granted  by  Con- 
gress in  1872,  in  order  to  get  the  representatiou,  and  then  deliberatelj'^ 
disfranchised,  in  the  face  of  that  law,  quite  two-fifths  of  her  voters,  so 
that  a  few — scarcely  half — of  her  citizens  might  control  it. 

It  may  be  said  that  this  matter  can  only  be  readjusted  when  the  re- 
apportionment is  made;  but  the  answer  to  that  is  patent.  Such  abridg- 
ment of  the  rights  of  the  citizens  of  the  State  is  an  offense  which  the 
Constitution,  ex  propria  vigore,  declares  punishable  by  loss  of  represen- 
tation, and  consequently  of  electors.  When  is  this  offense  to  be  pun- 
ished? The  answer  is,  when  it  is  discovered,  whether  it  is  looked  upon 
in  the  light  of  an  offense  or  a  wrong  done.  All  offenses  should  be  pun- 
ished when  discovered  ;  all  wrongs  done,  righted  when  discovered. 

Is  there  any  man  on  the  committee  who  doubts,  upon  all  this  evidence^ 
that  if  it  had  not  been  for  these  disfranchising  laws  of  Massachusetts, 
and  the  manner  in  which  they  were  executed,  the  contestant  would  have 
been  uncontestedly  elected?    There  can  be  but  one  honest  reply  to  that. 

If  so,  then  it  is  within  the  power  of  the  House  to  seat  a  man  who  re- 
ceived, upon  any  count,  within  a  score  or  two  of  a  plurality  of  the  votes 
actually  thrown,  and  who  would  have  received  a  large  majority  of  the 
votes  of  which  he  was  unconstitutionally  and  illegally  deprived. 

We  have  done  our  duty  in  presenting  these  wrongs  to  Congress.  Let 
the  House  apply  the  remedy,  and  right  the  wrongs,  and  prevent  the 
wrong-doers  from  enjoying  the  benefits  of  such  wrongs,  either  in  too 
great  representation  in  the  House  or  in  the  Electoral  College,  thereby 
controlling  the  choice  of  the  President. 

We  recommend  that  the  following  be  adopted  by  the  House  of  Rep- 
resentatives in  tliis  case: 

Resolved,  That  E.  Moody  Boynton  is  entitled  to  the  seat  in  the  Forty- 
sixth  Congress  from  the  sixth  Congressional  district  of  Massachusetts^ 
and  that  George  B.  Loring  is  not  entitled  thereto. 

J.  B.  WEAVER. 


DUFFY    VS.    MASON.  361 


SEBASTIAN  DUFFY  vs.  JOSEPH  MASON. 

Twenty-fourth  Congressional  District  of  New  York. 

Contestant  alleges  fraud,  the  buying  of  votes,  and  other  corrupt  and  illegal  means  on- 
the  part  of  contestee.  Contestee  insists  that  the  grounds  of  contest  are  not  stated 
with  that  precision  and  certainty  required  by  statute. 

Held,  Tliat  the  notice  of  contest  is  clearly  insufficient,  but  the  contestee  is  estopped 
by  his  own  acts  from  assailing  the  sufficiency  of  the  notice,  and  its  defects  have 
been  waived  by  a  subsequent  agreement  with  reference  to  the  taking  of  testimony. 

The  proof  that  rumors  existed  that  persons  friendly  to  contestee  improperly  influenced 
their  employes  to  vote  contestee's  party  ticket  is  incompetent  and  must  be  rejected 
as  hearsay.  It  is  necessary  to  establish  the  truth  of  these  rumors  and  not  their 
bare  existence;  and  for  the  same  reason  all  evidence  relating  to  volimtary  state- 
ments made  by  persons  not  under  oath  or  witnesses  must  be  rejected,  as  all  such 
heresay  evidence  is  inadmissible. 

Where  evidence  fails  to  show  that  money  used  by  political  committees  was  used  ta 
corrupt  or  improperly  influence  the  voters,  such  voters  cannot  be  disfranchised, 
even  though  members  of  such  committees  have  possibly  violated  State  statutes 
by  using  money  for  purposes  prohibited  by  such  statutes. 

A  candidate  cannot  be  held  responsible  for  all  the  imprudent  and  censurable  acts  of 
indiscreet  friends,  who,  in  the  zealous  advocacy  of  his  election,  resort  to  improper 
means  in  securing  that  result  without  his  knowledge,  unless  the  voters  affected 
by  such  means  are  sufficient  in  number  to  change  or  render  uncertain  the  result 
of  the  election. 

Evidence  which  shows  only  that  certain  persons  who  voted  were  students  at  a  uni- 
versity in  the  district  creates  no  presumption  that  they  were  not  legal  voters  at 
the  place  where  such  university  islocated. 


The  House  adopted  the  report  May  21,  1880. 


May  21,  1880. — Mr.  Colerick,  from  the  Committee  on  Elections,  sub- 

mittted  the  following 

REPORT: 

The  Committee  on  Elections,  to  whom  icas  referred  the  contested-election 
case  of  Sebastian  Duffy  against  Joseph  Mason,  from  the  twenty  fourth 
Congressional  district  of  New  York,  respectfully  submit  the  following 
report  : 

The  election  oat  of  which  this  contest  arises  occurred  on  the  5th  day 
of  November,  1878,  in  the  twenty-fourth  Congressional  district  of  the 
State  of  New  York,  composed  of  the  counties  of  Oswego  and  Madison. 
The  official  returns  show  that  the  contestee  received  for  Representative 
in  Congress  from  said  district  12,043  votes,  and  the  contestant  11,307, 
making  the  contestee's  official  majority  730. 

The  grounds  of  contest  are  specified  in  the  notice  of  contest,  of  which 
the  following  is  a  copy : 


562  DIGEST    OF    ELECTION    CASES. 

NOTICE   OF   CONTEST. 

Hon.  Joseph  Mason, 

Hamilton,  Madison  County,  New  York: 

Sir  :  Please  take  notice  that  I  shall,  in  the  manner  provided  by  law  and  the  rules 
and  precedents  of  the  House  of  Representatives  of  the  United  States,  contest  your 
•election  and  your  certificate  of  such  election  as  a  member  of  the  Forty-sixth  Congress 
-of  said  United  States  from  the  twenty-fourth  Congressional  district  of  the  State  of 
New  York,  on  the  following  grounds,  to  wit: 

First.  That  you  did  not  receive  a  majority  of  the  legal  votes  cast  at  the  election  held 
in  said  Congressional  district  on  the  5th  day  of  November  last,  but,  on  the  contrary, 
that  I  did  receive  a  majority  of  such  votes. 

Second.  That  your  election  was  effected  and  procured  by  force,  fraud,  intimidation, 
promises  of  favor,  corruption,  the  buying  of  votes  and  A^oters,  and  other  corrupt  and 
illegal  means  used  by  you  and  in  your  behalf;  and  that  your  certilicate  of  election  as 
such  member  of  Congress  was  and  ie  based  upon  and  the  result  of  such  force,  fraud, 
intimidation,  promises  of  favor,  the  buying  of  votes,  and  other  corrupt  and  illegal 
means  used  by  you  and  in  your  behalf. 

Third.  That  your  election  was  i)rocured  by  illegal  votes  and  illegal  voting  in  your 
behalf,  and  by  your  procurement  or  the  procurement  of  those  interested  in  your  elec- 
tion. 

FonrtlfPThat  your  certificate  of  election  is  invalid  for  the  reasons  stated  in  the 
second  specification  herein. 

Fifth.  That  I  was,  on  said  5th  day  of  November,  1878,  legally  elected  as  such  mem- 
ber instead  of  yourself,  and  am  entitled  in  your  stead  to  a  seat  in  said  Forty-sixth 
Congress. 

Dated  Pulaski,  December  23,  1878. 

SEBASTIAN  DUFFY. 

The  contestee  insists  that  the  grounds  of  contest  are  not  stated  with 
that  precision  and  certainty  required  by  the  statute  which  authorizes 
and  regulates  the  procedure  in  contests  of  this  nature.  The  objections 
urged  by  the  contestee  are  presented  in  his  answer,  as  follows  : 

II.  Your  notice  in  writing  served  upon  me  December  26,  1878,  is  insulficient  and  in- 
complete under  the  statute  and  practice  in  such  case  made  and  provided,  in  that  it 
does  not  specify  particularly  the  grounds  upon  which  you  rely;  that  is  to  say,  your 
charges  that  my  election  was  procured  by  force,  fraud,  intimidation,  promises  of 
favor,  the  buying  of  votes  and  voters,  and  other  corrupt  and  illegal  means  used  by 
me  and  in  my  behalf,  and  that  my  election  was  procured  by  illegal  votes  and  illegal 
voting,  aud  by  my  procurement  or  the  procurement  of  those  interested  in  my  election, 
and  grounds  of  contest  therefor  respectively,  do  not  state  who  was  forced  to  vote  for 
me,  and  what  fraud  contributed  to  my  election,  and  who  was  intimidated,  or  in  what 
manner,  place,  town,  city,  or  county  such  intimidation  was  had,  and  to  whom  or  in 
what  manner  promises  of  favor  were  made,  and  what  votes  and  voters  were  bought 
-or  where  and  when  such  votes  or  voters  were  so  bought,  and  what  other  corrupt  and 
illegal  means  were  used  by  me  and  in  my  behalf,  and  by  what  illegal  votes  and  ille- 
gal voting  by  my  procurement  or  the  procurement  of  those  interested  in  my  election 
you  were  prejudiced,  and  who  were  so  interested,  and  in  what  election  district,  town, 
-city,  or  county  such  persons  reside  aud  perpetrated  such  acts  complained  of. 

The  statute  provides : 

Sec.  105.  Whenever  any  person  intends  to  contest  an  election  of  any  member  of  the 
House  of  Representatives  of  the  United  States,  he  shall,  within  thirty  days  after  the 
result  of  such  election  shall  have  been  determined  by  the  officer  or  board  of  canvass- 
ers authorized  by  law  to  determine  the  same,  give  notice,  in  writing,  to  the  member 
whose  seat  he  designs  to  contest,  of  his  intention  to  contest  the  same,  and  in  such  no- 
tice shall  specify  particularly  the  grounds  upon  which  he  relies  in  the  contest.  (Re- 
vised Statutes  of  the  United  States,  page  18.) 

McCrary,  in  his  Law  of  Elections,  section  343,  referring  to  this  stat- 
ute, says: 

A  good  deal  of  discussion  has  arisen  as  to  what  is  to  be  understood  by  the  words 
"specify  particularly  the  grounds  on  which  he  relies."  It  is  evident,  however,  that 
these  words  are  not  easily  defined  by  any  others.  They  are  as  plain  and  cJear  as  any 
terms  which  we  might  employ  to  exj^lain  them.  Cases  have  arisen,  and  will  again 
arise,  giving  rise  to  controversy  as  to  whether  a  given  allegation  comes  up  to  the  re- 
quirement of  this  statute,  and  it  must  be  for  the  House  in  each  case  to  decide  upon  the 
case  before  it.     It  may  be  observed,  however,  that  this  statute  should  receive  a  reason- 


DUFFY    VS.    MASON.  363 

able  construction,  one  that  will  cany  out  and  not  defeat  its  spirit  and  purpose.  And 
perhaps  t  he  rule  of  coustructiou  which  will  provt/  safest  as  a  guide  in  each  case  is  this : 
A  notice  which  is  sufficiently  specilic  to  put  the  sitting  member  upon  a  properdefense 
and  prevent  any  surprise  being  practiced  upon  him  is  good,  but  one  which  fails  to  do 
this  is  bad.     (Wright  r».  Fuller,  1  Bartlett,  1.52.) 

The  Houses  of  Congress  when  exercising  their  authority  and  jurisdiction  to  decide 
upon  "  the  election  ret  urus  and  qnalitications ''  of  members  are  not  l>ouud  by  the  tech- 
nical rules  which  govern  proceedings  in  courts  of  justice.  Indeed,  the  statutes  to  be 
found  among  the  acts  of  Congress  regulating  the  mode  of  conducting  an  election  con- 
test in  the  House  of  Representatives  are  directory  only,  and  are  not  and  cannot  be 
made  mandatory  under  the  Constitution.  In  practice  these  statutory  regulations 
are  often  varied  and  sometimes  wholly  departed  from.  They  are  convenient  as  rnles 
of  j>ra<  tice  and  of  coarse  will  be  adhered  to,  unless  the  House  in  its  di-scretion  shall 
in  a  given  case  determine  that  the  ends  of  justice  require  a  ditferent  course  of  action. 
Thev  constitute  wholesome  rules  not  to  be  departed  from  without  cause.  (Ibid.,  sec- 
tion 349.) 

While  it  is  true  that  this  statute  should  receive  a  liberal  construction, 
yet  it  will  not  do  to  permit  parties  to  disregard  its  provisions.  The 
House,  in  sanctioning  its  viol.Ttion  in  cavses  heretofore  determined,  has 
created  precedents  that  are  now  frequently  and  pertinently  cited  to 
justify  similar  infractions.  This  practice,  if  tolerated,  will  finally  result 
in  the  virtual  abrogation  of  the  statute.  The  only  safe  course  to  ijursue 
is  to  require  at  least  a  substantial  compliance  with  its  provisions.  We 
think  that  the  notice  of  contest  in  this  case  is  clearly  insutiicient.  It  is 
too  indefinite  and  uncertain  in  its  allegations.  As  was  said  in  the  case 
of  Bromberg  vs.  Haralson  (Smith's  Digest  of  Election  Cases,  page  355) — 

It  is  too  vague  and  uncertain  to  be  good.  The  statute  requires  that  the  contestant 
in  his  notice  ''shall  specify  particularly  the  grounds  upon  which  he  relies  in  his  con- 
test." It  is  impossible  to  conceive  of  a  specitication  of  the  grounds  of  contest  broader 
or  more  general  in  its  terms.  It  tixes  no  place  where  any  act  complained  of  occurred. 
It  embraces  the  whole  district  in  one  sweeping  charge.  This  specitication  embraces 
three  general  grounds  of  complaint,  not  one  of  which  possesses  that  particularity  essen- 
tial to  good  pleading. 

But  the  contestee  in  this  case  is  justly  estopped  by  his  own  act  and 
conduct  from  assailing  the  sufficiency  of  the  notice  of  contest,  and  its 
defects  have  been  by  him  waived.  The  record  contains  the  following 
agreement: 

United  States  of  America: 

In  the  matter  of  the  contested  election  of  Joseph  Mason,  Representative-elect  to  the 
Forty-sixth  Congress  from  the  twenty-fourth  Congressional  district,  State  of  New 
York : 

It  ia  hereby  stipulated  and  agreed,  by  and  between  Sebastian  Duflj*  and  Joseph  Mason, 
contestees,  through  i  heir  respective  attorneys,  that  all  affirmative  evidence  heretofore 
^iven  or  which  may  hereafter  be  given  be,  and  remain,  in  this  contest  as  a  part  of  con- 
testant's case,  and  that  contestee,  in  consideration  of  this  consent  and  stipulation  on 
his  paft,  have  sufficient  time  after  the  expiration  of  the  statutory  limit  of  ninety  days 
in  which  to  give  evidence  in  answer  to  such  new  matter  so  put  in  evide/ice,  to  the  end 
that  simple  and  exact  justice  be  done  to  all  parties,  and  that  contestant  have  reason- 
able time  to  put  in  evidence  in  rebuttal  only  to  such  evidence  as  the  contestee  may 
give  after  said  ninetv  davs  shall  have  expired.  •  *  * 
Dated  April  10,  1879. 

S.  D.  WHITE, 

Attorney  for  Duffy. 
JOHN  J.  LAMOREE, 
Attorney  for  Joseph  Mason,  Oxwego  County. 
D.  N.  WELLINGTON, 
Attorney  of  Joseph  Mason  for  Madison  County. 

That  such  defects  may  be  waived  has  been  determined  by  at  least  two 
decisions  of  the  House.  (See  Otero  vs.  Gallegos,  1  Bartlet,  178,  Brom- 
berg vs.  Haralson,  Smith's  Digest  of  Election  Cases,  page  356.) 


364  DIGEST    OF    ELECTION    CASES. 

If  these  defects  had  not  been  waived  we  would  feel  fully  justified,  by 
reason  of  the  insufficiency  of  the  notice,  in  dismissing  this  case  or  ex- 
cluding the  evidence  offered  in  support  of  the  alleged  grounds  of  con- 
test; but  in  view  of  this  waiver,  we  are  compelled  to  examine  the  evi- 
dence and  determine  the  merits  of  this  contest. 

We  will  consider  the  grounds  of  contest  a«  stated  in  the  contestants  brief j^ 
and  in  the  order  in  which  they  are  herein  presented,  as  follows: 

On  the  part  of  the  contestant,  it  is  claimed  that  a  sufficient  number  of  votes  were 
withheld  from  him  and  controlled  by  and  cast  lor  the  contestee  throHfj;h  bribery  and 
the  corrupt  and  illegal  use  of  money  by  contestee,  his  agents  and  servants,  and  those 
working  in  his  interest,  with  his  consent,  and  through  intimidation  practiced  by  theii^ 
to  far  more  than  overbalance  tbese  majorities. 

The  means  and  appliances  used  to  bring  about  this  result  were : 

First.  The  system  of  bribery  and  intimidation  established  by  Thomson  Kiugsfoi-d, 
the  manager  of  the  Oswego  Starch  Factory,  a  powerful  corporation,  by  which  the  em- 
ployes of  said  Kingsford  and  of  said  Starch  Factory  Company,  numbering  nearly 
or  quite  one  thousand  voters,  have  been  persuaded  by  steady  employment,  at  good 
wages,  or  the  hope  thereof,  and  intimidated  by  the  fear  of  being  discharged  from 
such  employment  and  deprived  of  the  same  in  future,  to  vote  the  ticket  to  which  said 
Kingsford  was  favorable  and  on  which  contestee  was  a  candidate. 

Second.  The  raising  and  expending  large  sums  of  money  by  the  contestee  and  those 
acting  in  concert  with  him,  with  his  knowledge  and  consent,  in  violation  of  the  stat- 
utes of  the  State  of  New  York,  through  the  agency  and  instrumentality  of  the  con\- 
mittees  of  the  political  organization  of  which  he  was  the  candidate,  for  the  purpose 
of  illegally  influencing  the  voters  to  attend  the  polls  and  vote  for  said  contestee  and 
the  candidates  for  other  offices  running  on  the  same  ticket  with  him. 

Third.  The  expenditure  of  large  sums  of  money  by  political  leaders  of  the  parly  of 
which  the  contestee  was  a  candidate,  at  and  about  the  time  of  the  election,  and  iu 
giving  employment  to  electors  who  were  day  laborers,  with  a  view  to  exercise  a  con- 
trol over  their  votes  as  an  incident  of  their  employment. 

Fourth.  Bribery  of  voters  to  vote  for  the  contestee,  and  the  buying  of  the  influence 
of  persons  controlling  or  supposed  to  control  the  votes  of  other  persons,  to  procure 
votes  for  contestee,  and  other  corrupt  and  illegal  use  of  money  practiced  by  the  con- 
testee, his  clerks,  agents,  servants,  and  attorneys,  and  those  acting  in  concert  with 
him,  other  than  the  regular  committees  of  the  political  party  of  which  he  was  the 
candidate,  and  with  his  assent  and  approval,  iu  promoting  his  election. 

Fifth.  That  a  large  number  of  persons  who  were  not  legal  voters  voted  for  the  con-^ 
testee,  and  their  votes  are  credited  to  him  in  the  count.     [See  contestant's  brief, 
pages  2  and  3.  ] 

I. 

That  rumors  have  prevailed  in  the  city  of  Oswego  for  many  years 
past  that  Thompson  Kingsford,  and  others  connected  with  him  in  the 
management  of  the  Oswego  Starch  Factory,  improperly  influence  their 
employes  to  vote  the  Republican  ticket  is  clearly  shown  by  the  evi- 
dence, and  we  have  no  doubt  that  many  of  these  persons  who  have 
testified  as  to  the  prevalence  of  these  rumors  sincerely  believe  that  such 
an  influence  is  exercised.  It  is  necessary  for  us  to  ascertain  and  deter- 
mine from  Xhe  evidence  the  truth  of  these  rumors  and  not  their  bare 
existence^  as  they  may  have  been  entirely  unfounded  and  untrue.  The 
charge  that  such  a  system  prevailed  at  the  time  of  the  election  in  con- 
troversy must  be  established  by  competent  proof,  rendered  by  sworn 
witnesses,  personally  cognizant  of  the  facts  upon  which  the  charge  is 
based.  All  the  witnesses  examined  by  the  contestant,  except  three,  to 
whose  evidence  we  will  hereafter  refer,  frankly  admit  that  they  have  no 
personal  knowledge  of  the  existence  of  such  a  system,  and  that  the  only 
information  possessed  by  them  upon  that  subject  was  solely  derived 
from  these  rumors  and  from  statements  made  to  them  by  persons  professing 
to  have  actual  knowledge  of  the  facts,  none  of  whom,  excepting  the  three 
above  referred  to,  were  called  by  the  contestant  as  witnesses  to  prove 
the  truth  of  their  assertions,  while,  on  the  other  hand,  the  contestee 


DUFFY    VS.    MA80N.  365 

examined  as  witnesses  a  large  number  of  the  employes  of  the  factory, 
who  positively  deny  that  any  such  system  ever  prevailed  there,  and 
declare  that  no  improper  influence  has  ever  been  brought  to  bear  upon 
the  employe's  aiiecting  their  political  action,  and  that  they  do  not  know 
of  an  instance  where  i)ersons  there  emi)loyed,  and  desiring  to  vote  the 
Democratic  ticket,  have  been  deterred  from  doing  so  by  fear  or  ap]>re- 
hension  that  they  might  be  discharged  from  employment  should  they 
do  so. 

It  is  our  duty  to  reject  all  the  evidence  that  has  been  offered  relative 
to  the  existence  of  the  rumors  to  which  we  have  alluded,  as  it  is  clearly 
incompetent,  and  we  must,  for  the  same  reason,  discard  all  evidence  re- 
lating to  voluntary  statements  made  by  persons  not  under  oath  or  wit- 
nesses, as  all  such  hearsay  evidence  is  inadmissible. 

The  rule  that  we  apply  in  rejecting  this  evidence  is  stated  in  1  Green- 
leaf  on  Evidence,  page  115,  thus : 

Hearsay  evidence  is  nnifonnly  incompetent  to  establish  any  specific  fact  which  in  its 
nature  is  HnsceptibJe  of  being  proved  by  witiiesses  tcho  speak  from  their  own  knowledge.  That 
it  supposes  something  better  that  might  be  adduced  in  the  particular  cases  is  not  the 
only  ground  of  its  exclusion.  Its  intrinsic  weakness,  its  incompetency  to  satisfy  the 
mind  as  to  the  existence  of  the  fact,  and  the  frauds  which  may  Ije  practiced  under  it« 
cover,  all  combine  to  support  the  rule  that  hearsay  evidence  is  wholly  inadmissible. 

None  of  the  evidence  excluded  by  us  corner  within  any  of  the  excep- 
tions to  the  rule  above  stated,  and  this  rule  has  often  been  applied  by 
the  House  of  Kepresentatives  in  cases  of  this  character. 

The  application  of  this  rule  results  in  the  rejection  of  all  the  evidence 
introduced  by  the  contestant  in  support  of  the  first  ground  of  his  con- 
test, save  that  rendered  by  Daniel  Sweeney,  Alexander  Lemmon,  and 
Hiram  Hammond,  all  of  whom  were,  at  diflterent  times  prior  to  1878, 
€mi)loyed  in  the  factory,  aud  who  claim  that  they  were  discharged  from 
their  employment  by  reason  of  their  political  sentiments  and  aflBliations. 

Daniel  Sweeney  testifies  that  in  the  fall  of  1862,  eighteen  years  ago, 
he  was  discharged'  bj'  Kingsford  because  he  refused  to  vote  for  Wads- 
worth,  the  KepubHcan  candidate  for  governor  of  the  State  of  New  York ; 
that  he  had  worked  in  the  fiictory  for  fourteen  years  continuously,  and 
it  was  the  only  occasion  that  he  was  ever  spoken  to  by  Kingsford  on  the 
subject  of  voting.     (See  Eecord,  page  202.) 

Alexander  Lemmon  testifies  that  in  1873  or  1874  he  was  requested  by 
Kingsford  "  to  go  to  the  polls  and  peddle  tickets  for  him,"  and  that  he 
was  discharged  from  his  employment  because  h6  was  accused  of  "  ped- 
dling Democratic  tickets  with  the  Republican  heads  on."  (See  Record, 
page  144.) 

Hiram  Hammond  testifies  that  in  1876  Kingsford  expressed  his  desire 
that  witness  should  vote  for  Hayes  for  Presideut,  which  he  promised  to 
do,  but  voted  for  Tilden,  and  that  in  the  latter  part  of  December,  3878, 
at  the  close  of  the  year's  work  at  the  factory,  he  was  discharged  from 
his  employment.  (See  Record,  page  987.)  That  he  had  worked  at  the 
factory  "  off  and  on  "  for  fourteen  years,  and  that  the  occasion  to  which 
he  alludes  is  the  only  time  that  Kingsford  ever  talked  to  him  on  the 
subject  of  politics  (page  993). 

These  are  the  only  instances,  extending  over  a  period  of  sixteen  years, 
where  it  is  shown  by  competent  evidence  that  Kingsford  or  any  other 
person  interfered  in  any  manner  with  the  employes  of  the  factory  in  the 
free  and  unrestrained  exercise  by  them  of  the  elective  franchise.  There 
is  no  evidence  in  the  record,  that  we  have  discovered,  showing  a  single 
instance  of  such  interference  on  the  part  of  Kingsford  or  any  other 
person  connected  with  the  management  of  the  factory,  relating  to  the 
©lection  in  controversy. 


366  DIGEST  OF  ELECTION  CASES. 

It  is  proper  for  us  to  say  that  evidence  has  been  presented -by  the 
contestee  showing,  or  tending  to  show,  that  Sweeney,  Lemmon,  and 
Hammond  were  discharged  for  other  than  political  causes,  ^namely, 
that  Sweeney  was  discharged  on  account  of  his  intemperate  habits 
(see  Kecord,  pages  209, 361),  and  Lemmon  for  like  cause  and  for  gross  neg- 
ligence (Record,  page  535).  Hammond  admits  on  his  cross  examination 
that  four  other  employ<5s  were  discharged  at  the  time  of  his  discharge, 
two  of  whom  were  Repnhlicans,  and  that  the  cause  assigned  by  the  fore- 
man for  their  discharge  was  that  the  work  was  insufficient  for  the  entire 
force  then  employed  in  the  factory.     (See  Record,  page  994.) 

If  such  a  system  does  in  fact  exist,  it  is  deplorable  and  merits  the 
severest  censure.  Those  engaged  in  such  practices  richly  deserve  the 
just  contempt  of  all  who  love  liberty  and  despise  tyranny,  and  they 
should  be  punished  by  the  State  whose  laws  they  so  grievously  offend. 
But  the  evidence  ijresented  in  this  case  is  insufficient  to  authorize  us  as 
judges,  governed  by  law,  to  declare  that  such  a  system  actually  pre- 
vailed in  the  Oswego  Starch  Factory,  at  least  in  1878.  If  we  accept  as 
true  the  rumors  that  prevailed  as  to  its  existence,  still  the  evidence  is 
incomplete,  as  it  wholly  fails  to  furnish  any  data  by  which  the  number 
of  voters  affected  by  it  can  be  ascertained ;  and  even  excluding  the 
ballots  of  all  the  voters  then  employed  in  the  factory,  which  are  esti- 
mated by  witnesses  at  150  to  200;  it  would  not  affect  or  change  the  re- 
sult of  the  election,  as  the  coutestee's  official  majority  is  736. 

II. 

The  contestant,  in  his  brief  (page  25),  says : 

Under  our  second  general  heading,  we  call  attention  to  the  statute  of  the  State  of 
New  York  regulating  elections ;  the  acts  of  the  county  committees  of  the  party  ( whose 
candidate  contestee  was)  in  violation  of  those  statutes ;  the  privity  of  the  contestee  to 
those  violations,  and  their  eftect  upon  the  result  of  the  canvass.  • 

That  part  of  the  statxite  in  question  which  it  is  claimed  was  violated  is  found  in 
volume  first  of  Banks  &  Brothers,  sixth  edition  of  the  Revised  Statutes  of  the  State 
of  New  York,  on  page  452,  being  H  6,7,  and  8,  of  title  7,  chapter  6,  part  1,  of  the  re- 
vised statutes,  and  reads  as  follows : 

"  ^  6.  It  shall  not  be  lawful  for  any  candidate  for  any  elective  ofl&ce,  with  intent  to 
promote  his  election,  or  for  any  other  person,  with  intent  to  promote  the  election  of 
any  such  candidate,  either — 

"1.  To  provide  or  furnish  entertainment  at  his  exjiense  to  any  meeting  of  electors 
previous  to  or  during  the  election  at  which  he  shall  be  a  candidate;  or, 

"2.  To  pay  for,  procure,  or  engage  to  pay  for,  any  such  entertainment;  or, 

"3.  To  furnish  any  money  or  other  property  to  any  person  for  the  purpose  of  being 
expended  in  procuring  the  attendance  of  voters  at  the  polls;  or, 

"4.  To  engage  to  pay  any  money,  or  deliver  any  property,  or  otherwise  compensate 
any  person  for  procuring  the  attendance  of  voters  at  the  poUs;  or, 

"5.  To  contribute  money  for  any  other  purpose  intended  to  promote  an  election  of  any 
particular  person  or  ticket,  except  for  defraying  the  expenses  of  printing,  and  the  circu- 
lation of  votes,  handbills,  and  other  papers  previous  to  any  such  election,  or  for  CON- 
VETING  sick,  poor,  or  infirm  electors  to  the  polls. 

"$  7.  No  person  shall  fraudulently  or  deceitfully  change  or  alter  a  ballot  of  any 
elector,  nor  shall  furnish  an  elector  any  ballot  containing  more  than  the  proper 
number  of  names,  or  cause  any  other  deceit  to  be  practiced  with  intent  fraudulently 
to  induce  such  elector  to  deposit  the  same  as  his  vote,  and  thereby  to  have  the  same 
thrown  out  and  not  counted. 

"  §  8.  Every  person  offending  against  the  provisions  of  this  act  shall  be  deemed 
guilty  of  a  misdemeanor,  punishable  by  fine  not  exceeding  two  hundred  and  fifty  dol-  . 
lars,  or  by  imprisonment  not  exceeding  six  months." 

We  have  carefully  examined  all  the  evidence  introduced  by  both 
parties,  for  the  purpose  of  ascertaining  the  amount  of  money  raised  and 
expended  "  through  the  agency  and  instrumentality  of  the  committees 
of  the  political  organizations  "  of  which  the  contesting  parties  were  the 


DUFFY    VS.    MASON.  367 

candidates,  and  the  purposes  for  wliicli  it  was  used,  and  we  herewith 
present  a  synopsis  of  the  evidence  upon  the  subject: 

Charles  iforth  testifies  that  he  was  the  chairman  of  the  Republican 
county  committee  of  Oswego  County  in  the  fall  of  1878,  and  had  the 
general  charge  of  the  conduct  of  the  election  on  the  part  of  the  Eepub- 
lican  party,  and  that  the  committee  obtained  funds  for  the  campaign  by 
contributions  from  the  Republican  candidates,  officeholders,  and  other 
^'])atriotic  citizens,"  and  that  these  assessments  were  proportioned  to 
the  supposed  necessary  expenses  of  the  campaign,  and  that  the  pur- 
poses for  which  the  committee  were  expected  to  furnish  money  was  to 
pay  the  exi)enses  of  public  meetings  and  speakers,  distribute  paper* 
and  documents,  priut  and  distribute  ballots  on  election  day,  and  furnish 
a  small  sum  to  each  town  and  ward  committee  for  the  purpose  of  get- 
ting the  aged,  poor,  and  infirm  voters  to  the  polls,  and  that  money  had 
been  raised  and  expended  by  the  Democratic  county  committee  for  the 
same  purposes  and  in  the  same  manner,  and  that  this  had  been  the 
practice  of  both  parties  as  long  as  he  has  had  any  acquaintance  with 
political  affairs  in  that  county.  That  such  an  assessment  was  made  by 
the  Republican  county  committee  of  Oswego  County  in  the  fall  of  1878^ 
and  that  the  contestee,  as  the  Republican  candidate  for  Congress  in 
that  district,  was  assessed  S^OO  by  that  committee,  which  he  paid  to  the 
witness,  as  the  chairman  of  the  committee,  and  that  it  was  used  for  said 
purposes,  and  no  other  (Record,  pages  553  and  554);  and  that  from 
ten  to  twelve  hundred  dollars  had  been  raised  by  the  committee  in  the 
fall  of  1878  for  said  purposes  that  passed  through  his  hands  (Record, 
page  557). 

James  Dowdle  testifies  that  he  was  the  treasurer  of  the  Greenback 
county  committee  of  Oswego  County ;  that  at  a  meeting  of  said  commit- 
tee, at  which  the  contestant  was  present,  it  was  agreed  that  each  candi- 
date should  pay  for  printing  tickets  and  handbills  and  circulating  them, 
and  that  no  money  should  be  raised  except  for  those  purposes;  and  that 
an  assessment  was  afterwards  made  on  that  basis,  and  that  contestant 
was  assessed  $50,  which  he  paid,  and  that  the  money  so  raised  by  the 
committee  was  used  for  said  purposes.     (See  Record,  page  975.) 

John  A.  Barry  testifies  that  he  was  the  treasurer  of  the  Democratic 
county  committee  of  Oswego  County,  and  that  all  monej's  raised  by 
that  committee  for  the  purpose  of  carrying  on  the  campaign  came  into 
his  hands  as  such  treasurer,  and  that  $140  was  raised  for  that  purpose. 
and  was  used  in  paying  for  the  printing  and  distribution  of  tickets  in 
the  county,  and  was  raised  by  the  assessment  of  the  committee  upon 
Democratic  candidates,  and  that  the  contestant  was  assessed  $25,  which 
he  paid.     (See  Record,  page  1037.) 

Edwin  S.  Barker  testifies  that  he  was  the  chairman  of  the  Republican 
county  committee  of  Madison  County.  That  the  committee  assessed 
the  contestee  $200  to  pay  campaign  expenses,  which  he  paid.  That  all 
the  assessments  made  by  the  committee  amounted  to  about  $700.  That 
the  publishers  of  five  Republican  newspapers  published  in  the  county 
received  $30  each,  making  $150;  and  that  each  town  in  the  county  re- 
ceived from  $20  to  $50  for  the  purpose  of  procuring  teams  to  bring  in 
the  indigent  voters,  and  these  were  all  the  disbursements  made  except 
$10  paid  to  Colonel  Canter,  a  Republican  speaker,  to  pay  his  fare  to  Au- 
burn. There  are  fourteen  towns  in  the  county.  That  $550,  being  the 
balance  of  the  $700  remaining  after  paying  $150  to  said  newspapers, 
was  distributed  in  these  fourteen  towns  to  be  used  in  paying  expenses 
in  procuring  teams  and  getting  out  the  indigent  voters,  and  to  defray 
the  expense  in  procuring  speakers  to  address  the  people  on  the  political 


368  DIGEST    OF    ELECTION   CASES. 

issues.  That  he  never  heard  any  talk  or  suggestion  that  any  of  this 
money  was  to  be  used  to  buy  votes  or  for  any  illegitimate  purpose. 
(Record,  pages  921  and  922.) 

Alonzo  E.  Cherry  testifies  that  he  was  chairman  of  the  Greenback 
county  committee  of  Madison  County  during  the  campaign  of  1878,  and 
that  there  was  money  placed  in  his  hands  during  that  campaign  to  be 
used  for  jiolitical  purposes:  that  he  received  $200  of  the  contestant,  be- 
ing the  amount  of  his  assessment  made  by  said  committee;  that  other 
assessments  amounting  to  $265  were  paid;  that  the  money  received  on 
these  assessments  of  the  contestautand  others  "  was  all  paid  out  for  legiti- 
mate business,  livery  bill  and  man  to  travel,  printiug,  furnishing  Irish 
World  and  documents  we  had  printed,  and  the  Utica  paper.  We  dis- 
tributed from  1,000  to  1,200  of  the  Utica  paper  weekly,  200  copies  of 
the  Irish  World,  besides  a  large  quantity  of  other  papers;  also,  $40  for 
one  meeting,  hall,  and  band  when  Duflfy  made  his  speech  at  Oneida." 
(See  Eecord,  page  728.) 

Theodore  Leonard  testifies  that  the  contestant  paid  to  Mr.  Lippitt, 
as  chairman  of  the  Democratic  county  committee  of  Madison  County, 
^100,  for  which  sum  he  had  been  assessed  by  the  committee.  (See 
Eecord,  page  259.) 

By  this  evidence  it  appears  that  the  contestee  paid  assessments  to  the 
amount  of  $400  and  the  contestant  $375.  That  it  was  proper  for  the 
candidates  to  make  contributions  or  pay  these  assessments  is  conceded 
by  the  contestant.  The  complaint  is  that  a  portion  of  the  monej'  so 
paid  by  the  contestee  was  used  by  the  committees  to  whom  it  was  paid 
for  purposes  prohibited  by  the  statute,  namely,  "in  procuring  the  at- 
tendance of  voters  at  the  polls"  who  were  neither  "  sick,  poor,  or  infirm," 
and  in  paying  the  expenses  of  public  meetings  and  speakers.  That  some 
of  the  money  was  used  for  these  purposes  is  clearly  shown  by  the  e\'i- 
dence.  The  contestant  seeks  to  hold  the  contestee  responsible  for  the 
acts  of  the  members  of  the  committees  representing  the  Republican 
party  in  the  district  who  violated  this  statute,  and  in  the  absence  of  any 
proof  showing,  or  tending  to  show,  that  the  contestee  directed  or  author- 
ized the  expenditure  of  the  money  contributed  by  him  for  the  purposes 
forbidden  by  the  statute.  A  principal  is  not  liable  for  the  illegal  acts 
of  his  agent,  unless  done  at  his  instance,  or  with  his  knowledge  and  as- 
sent. Good  faith  and  innocence  are  always  presumed.  If  A  intrusts  B 
with  money  to  be  used  by  him  for  certain  lawful  purposes,  and  B,  with- 
out the  knowledge  and  consent  of  A,  diverts  the  money  from  the  pur- 
poses to  which  it  was  to  be  applied,  and  uses  it  for  immoral  and  illegal 
purposes,  A  cannot  be  held  liable  for  the  misconduct  of  B.  That 
the  contestee  had  the  right  to  contribute  and  pay  to  these  commit- 
tees money  to  be  used  by  them  for  purposes  authorized  by  the  statute 
is  not  controverted  by  the  contestant,  and  in  the  absence  of  opposing 
proof  the  presumption  exists  that  he  did  not  authorize  its  expenditure 
for  purposes  prohibited  by  the  statute.  If  the  statute  was  violated  its 
offenders  are  by  the  provisions  of  the  statute  subject  to  i)unishment. 
Under  the  rigid,  illiberal,  and  unreasonable  construction  placed  upon 
this  statute  by  the  contestant,  it  is  even  unlawful  for  a  candidate  or  his 
friends  to  rent  a  hall  for  a  political  meeting,  procure  music,  or  employ 
a  speaker  to  discuss  the  political  issues,  because  it  may  tend  to  promote 
the  election  of  the  candidate,  and  if  such  a  meeting  is  held,  in  disre- 
gard of  this  statute,  the  legal  voters  who  a  ttended  it  are  subject  to  punish- 
ment therefor  by  the  forfeiture  of  their  votes,  regardless  of  the  result 
that  may  have  been  produced  by  the  charms  of  the  music  or  the  elo- 
quence of  the  speaker ;  or  if  a  legal  voter,  who  is  too  indifferent  or  iudo- 


DUFFY    VS.    MASON.  369 

lent  to  attend  the  election,  is  conveyed  to  the  polls  in  a  earriag:e  provided 
for  that  purpose  by  the  committee  of  the  party  of  which  lie  is  a  member, 
it  affords  sufficient  cause  for  challeu^iing  his  vote  to  show  that  he  Avas 
neither  "sick,  poor,  or  infirm,"  and  that  he  was  able  to  walk  or  pay  for 
his  ride  to  the  polls.  To  so  construe  the  statute  is  absurd.  If  the  per- 
son who  attends  such  meeting"  or  is  so  conveyed  to  the  polls  is  a  legal 
voter  his  vote  must  be  received  and  counted.  We  cannot  punish  legal 
voters  by  disfranchising  them  because  members  of  political  committees 
have  possibly  violated  the  statute,  as  construed  by  the  contestant.  The 
evidence  wholly  fails  to  show  that  the  money  was  used  to  corrupt  or 
improperly  intlueuce  tlie  voters.  The  supreme  court  of  Jfew  York,  in 
the  case  of  Hurley  vs.  Van  Wagner,  28  Barb.,  109  (1858),  in  construing 
this  statute,  said: 

A  person  who  pays  money  for  his  board,  or  railroad  or  steamboat  fare,  while  going  to 
or  from  a  political  meeting,  ar  who  pai/s  for  the  rnie  of  a  room  for  such  mcetingn,  or  for  the 
lights  or  attendance  thereat,  in  one  sense  contributes  money  to  promote  the  election  of  a 
particular  ticket  or  candidate.  But  is  it  a  contribution  of  money  in  the  sense  intended 
by  the  act?  Did  the  legislature  intend  to  ))rohibit  and  punish  as  a  misdemeanor 
every  expenditure  of  money  which  might  indirectly  jiromote  or  be  intended  to  promote 
the  election  of  j)articular  candidates?  Public  meetings,  large  assemblies  of  the  people, 
coustaut  and  almost  universal  intercommunication,  one  with  another,  and  journeys 
from  one  part  of  the  country  to  another,  are  the  usual  and  customari/  means  by  which  the 
election  of  particular  candidates  is  made,  and  they  necessarily  involve  the  expenditure 
of  large  sums  of  money  which  may  be  said  to  be  contributed.  Is  this  the  evil  that  the 
act  was  designed  to  sup))ress  ?  If  it  was,  it  may  be  safely  said  to  have  utterly  failed 
of  its  object,  for  during  the  twenty -nine  years  it  lias  been  upon  the  statute  book  hardly 
one  attempt  has  been  made  to  enforce  it;  and  the  evil  practice,  if  it  be  one,  has  gone 
on  and  gained  additional  strength  with  each  additional  year.  /  infer,  therefore,  that 
these  are  not  the  contrilnitions  in  money  forbidden  by  the  act.  If  the  payment  of  a  sum  of 
money  for  the  uf-e  of  a  room  in  which  to  hold  a  public  meeting  for  political  objects,  or  for  the 
lights  used  thereat,  or  for  the  attendance  of  a  person  to  prepare  such  room  and  keep  it  in 
proper  order,  is  a  contribution  of  vioney  to  promote  an  election  within  the  meaning  of  the 
statute,  so  is  the  money  a  man  may  expend  upon  himself  in  the  payment  of  tavern  bills 
and  the  expenses  of  transportation,  in  going  to  and  returning  from  such  meetings, 
equally  a  contribution  of  money  to  promote  an  election ;  because  all  such  expenditures 
tend  to  the  same  result,  and  the  money  is  disbni-sed  for  the  same  object,  and  that  is 
to  aid  in  the  election  of  a  particular  candidate  or  ticket.  It  is  not  possible  to  dis- 
criminate between  them,  so  tha*^^  to  adopt  the  construction  claimed  is  to  impute  to 
those  who  framed  the  law  the  most  absurd  intentions,  or  to  give  it  an  effect  which 
they  could  not  have  contemplated. 

Even  if  the  law  justified  us  in  excluding  the  ballots  of  those  voters 
who  were  conveyed  to  the  polls,  although  neither  "sick,  poor,  and  in- 
firm," yet  we  would  be  unable  from  the  evidence  to  compute  their  num- 
ber or  determine  for  whom  they  voted  ;  nor  could  we  ascertain  from  the 
evidence  whether  the  orators,  under  pay,  who  addressed  public  meetings 
in  rented  halls,  converted  lukewarm  Democrats  or  indifferent  Repub- 
licans into  "stalwarts,"  and,  if  so,  what  ones,  or  how  many. 

III. 

The  only  evidence  introduced  by  the  contestant  in  support  of  this 
charge  is  that  rendered  by  Richard  Graee,  John  C.  Cooley,  and  David 
H.  Judson,  as  follows: 

Richard  Grace  sworn. 

1.  Question.  What  is  your  age,  occupation,  and  residence  f — Answer.  Age,  thirty- 
three;  occupation,  mechanic;  residence.  No.  10  Yates  avenue,  eighth  ward. 

32.  Q.  Do  you  know  whether  the  Oswego  starch  factory  or  Thompson  Kingsford  last 
fall  at  the  time  of  the  election  were  putting  up  or  laying  the  foundation  for  a  large 
building  on  West  First  street,  in  the  city  of  Oswego? — A.  Don't  know  personally.  I 
saw  Kingsford  there  superintending  the  work,  and  reputation  saii  he  was  the  pro- 
prietor. 

H.  Mis.  58 24 


370  DIGEST  OF  ELECTION  CASES. 

33.  Q.  Where  was  this  building  you  saw  Thompson  Kingsford  superintending  lo- 
cated ? — A.  On  the  west  side  of  Oswego  River,  on  the  block  formerly  known  as  the 
new  hotel  block,  on  the  noith  side  of  Seneca  street,  between  First  and  Water  streets. 

34.  Q.  Can  yon  tell  about  how  many  men  there  were  at  work  on  that  building  imme- 
dhitely  befoie  and  after  the  fall  election? 

(Objection  as  No.  13.) 

A.  There  were  from  two  to  three  hundred  men  at  work  there  at  different  times. 

35.  Q.  Will  you  state  whether  there  was  a  current  general  report  in  the  city  of  Oswego 
at  the  time  ot  the  last  fall  election  that  Thompson  Kingsford  required  all  those  men 
to  vote  the  Republican  ticket  as  a  condition  of  being  retained  in  employment  ? 

(Ol'jected  as  to  No.  13.) 
A.  It  was  so  reported. 

37.  Q.  In  your  testimony  here  given  did  you  regard  the  men  working  upon  that 
building  as  in  the  employment  of  the  starch  factory  company? 

(Objection  as  to  No.  13.) 
A.  I  did. 

38.  Q.  At  what  time  did  they  commence  this  building  ? — A.  Some  time  last  Sep- 
teniber. 

39.  Q.  State  at  what  time,  as  near  as  yon  can,  there  were  the  most  men  at  work  on 
this  building  with  reference  to  the  time  of  election? 

(Ohjection  as  to  No.  13.) 

A.  The  best  of  my  recollection,  about  the  middle  of  October. 

40.  Q.  State  whether  about  the  same  number  of  men  were  continued  in  employ  from 
the  middle  of  October  until  after  election? 

(Objection  as  to  No.  13.) 
A.  There  were. 

41.  Q.  At  about  what  time  did  they  commence  to  reduce  the  number  of  men  at 
■work  ? 

(Objection  as  to  No.  13.) 

A.  A  fesv  days  after  election. 

(See  Record,  pages  186  and  187.) 

Deposition  of  John  ClarJc  Cooley. 

Witness  being  duly  sworn,  deposition  taken  in  j)ursuance  of  notice  filed: 

2151.  Question.  Where  do  you  reside?    State  your  age,  residence,  and  occupation. — 

Answer.  Resides  city  of  Oswego,  third  ward;  age  fifty-seven  years;  at  present  canal 

collector. 

2202.  Q.  Do  you  know  whether  last  fall,  and  within  a  month  or  two  before  his  elec- 
tion, Mr.  Kingsford  took  into  his  employ  a  considerable  number  of  other  men  engaged 
in  the  construction  of  a  building  in  tiie  city  of  Oswego? — A.  I  do. 

2:^03.  Q.  Do  you  know  how  long  they  were  continued  in  his  employ  after  the  elec- 
tion ? — A.  I  think  they  were  kept  until  the  neighborhood  of  December  or  into  Decem- 
ber till  it  froze  up. 

2204.  Q.  Do  you  know  about  how  many  men? — A.  No,  I  don't;  a  good  many;  prob- 
ably seventy-five  or  more.  , 

2205.  Q.  When  was  it,  then,  when  you  say  you  saw  seventy-five  men  ? — A.  Some  time 
in  October. 

2206.  Q.  Do  j'ou  know  whether  it  was  generally  understood  that  the-nnmber  was  in- 
creased just  belore  election? — A.  No,  sir. 

2207.  Q.  Was  there  a  cui  rent  report  that  all  the  voters  working  on  that  building  were 
required  to  vote  the  Republican  ticket  last  fall  by  Mr.  Kingstord  or  the  bosses  of  his 
■work? 

(Objected  to  as  before;  same  disagreement.) 

A.  After  election,  two  or  three  times  I  heard  that  they  bad  been  called  upon  to  vote 
the  Republican  ticket.  I  don't  know  anything  about  current  report  at  all,  fori  wasn't 
out. 

2208.  Q.  Who  did  you  understand  they  had  been  called  upon  by  ? — A.  /  understood 
that  Mr.  Kiugsford  had  had  them  called  upon  to  see  how  they  were  going  to  vote. 

(See  Record,  page  118.) 

Cross-examination: 

3107.  Q.  That  building  you  understand  Mr.  Kingsford  to  be  erecting  for  the  occupa- 
tion of  O.  M.  Blancbard  &..  C^'.  with  their  door,  sash,  and  blind  factory? — A.  Yes. 

3108.  Q.  That  firm  was  burned  out  last  summer,  was  it  not? — A.  Yes. 

3109.  Q.  About  how  mauy  men  did  you  understund  the  firm  of  Blancbard  &  Co.  to 
have  employed  in  their  business? — A.  1  have  heard  from  seventy-five  to  one  hundred 
and  fifty. 


DUFFY    VS.    MASON.  371 

3110.  Q.  Did  they  not  liud  it  difficult  to  find  any  place  to  occupy,  and  for  that  reason 
■was  it  ni>t  feared  that  they  wonhl  leave  the  cityf 

(Coinisel  for  couiestant :    I  object  to  it  as  irrelevant  and  iuimaterial,  and  has  been 
answered.     Notaries  disagree.) 
A.  All  I  kiHuv  is  what  I  saw  in  the  papers.     I  saw  it  so  stat  d. 

3111.  Q.  An<l  did  you  not  understiuid  that  the  conimitteo  on  manufactures  of  the 
board  of  tnule  waited  on  Mr.  Kiugsford  to  induce  him,  if  possible,  to  furnish  a  building 
for  their  oc<ui>atiou  f — A.  I  have  no  recollection  of  it. 

311'^.  Q.  Did  you  not  understand  that  this  building  in  question  by  Mr.  Kingsford 
was  couinienced  for  that  purp^'sef — A.  Yes. 

3113.  Q.  And  did  you  not  uuderstand  that  from  the  commencement  the  work  was 
pressed  torward  with  all  the  force  that  could  be  profitably  employed  until  it  was 
stopped  by  the  winter* — A.  I  did. 

3117.  Q.  Who  said  to  you  after  the  election  that  the  men  employed  by  Mr.  Kings- 
ford  on  that  building  had  been  called  upon  by  Mr.  Kingsford  to  vote  the  Bepublican 
ticker  ? — A.  I  can't  remember  now. 

31 1"^.  Q.  Can  you  remember  any  time  or  place  when  anythingof  the  kind  was  said? — 
A.  I  can't  remember  nowhere. 

3119.  Q.  Can  you  swear  that  you  heard  anything  of  the  kind  said  before  the  triai* 
of  this  contest  began  in  this  room  a  fortnight  ago  yesterday  f — A.  I  can,  positively. 

3120.  Q.  What  was  it  you  heard  said? — A.  The  remark  I  heard  wa«thatMr.  Kings- 
ford had  had  the  men  that  was  to  work  on  the  Blanchford  building  seen  relative  to 
voting  the  Republican  ticket.     That's  all  I  did  hear. 

3121.  Q.  By  whom  was  that  remark  made? — A.  I  can't  tell  you. 

312'2.  Q.  Can  \ou  tellanythingof  the  time,  place,  or  persou,  where,  when,  or  by  whom 
that  remark  was  made  ? — A.  I  cannot. 

312:J.  Q.  How  many  times  did  you  hear  that  remark  made  f — A.  I  have  just  answered 
that  question  by  saying  only  once. 

3124.  Q.  W~  y  did  you  say,  in  answer  to  question  *2207,  that  you  had  heard  that  siad 
two  or  three  times  f — A.  At  that  time  my  recollection  may  have  been  two  or  thre» 
times,  but  now,  on  retiection,  I  can  recollect  positively  only  once. 

(See  Record,  pages  167  an  1  IHd.) 

It  will  be  observed  that  these  witnesses  do  not  profess  to  have  any 
personal  knowledge  relative  to  Kingsford,  or  any  other  person,  exercis- 
ing, or  attempting  to  exercise,  any  influence  over  the  emjdoy^s  en- 
gaged in  the  construction  of  said  building  in  requiring,  inducing,  or 
persuading  them  to  vote  for  the  contestee  on  the  Kepublican  ticket. 
They  merely  testify  to  the  existence  of  a  rumor  that  such  influence  was 
exerted  over  them.  If  any  such  rumor  existed  it  was  wholly  without 
foundation,  as  is  clearly  and  convincingly  shown  by  the  evidence  pro- 
duced by  the  contestee,  to  which  we  will  hereafter  refer. 

The  evidence  upon  which  the  contestant  mainly  relies,  in  support  of 
this  charge,  is  that  rendered  by  David  H.  Judson,  as  follows : 

Deposition  of  David  H.  Judson. 

6356.  Question.  State  your  name,  age,  residence,  and  occupation. — Answer.  Name, 
David  H.  Judson;  age,  fifty  years;  occupation,  real  estate  and  boat  repairing;  resi- 
dence, Osweiio  City,  East  Seventh  street,  No.  151. 

6403.  Q.  Did  you  know  of  the  buildiug  of  the  shade-cloth  factory  in  the  city  of  Os- 
wego last  fall  just  prior  to  electitm  ?  and,  if  so,  state  whether  the  same  was  a  large  or 
small  building,  or  required  the  employment  of  a  large  orsmall  numberof  men  to  erect 
the  same  ;  also  state  in  the  same  counectiou  of  Thompson  Kingsford  erectiug  a  large 
building  on  the  corner  of  We^t  First  auii  Seneca  street*  last  fall,  and  state  whether 
there  was  a  large  or  snuiU  nuntber  of  men  there  employed  prior  to  aud  at  the  time  of 
election.— A.  1  know  of  the  building  of  the  shade-cloth  factory,  which  was  commenced 
during  th-  summer  season  of  1878,  and  that  a  large  nuiuber  of  men  were  employed 
thereon.  I  also  know  of  the  erection,  or  of  the  coumieucing  to  erect,  the  building 
known  as  the  sash  and  blind  factory  by  Thompson  Kingsford,  aud  that  there  w  as  a  large 
force  of  men  employed  on  that  building. 

6404.  Q.  And  was  not  the  Hon.  George  Z.  Sloan,  who,  at  the  time  of  the  erecting  of 
the  shade-cloih  factory  and  at  the  time  of  the  electi-'U,  was  a  candidate  for  member  of 
assembly,  the  principal  man  a.s  you  understood  in  the  erection  of  that  factory,  and  a 
warm  suj)porter  of  Joseph  Mason  for  member  of  Congress  in  this  district  as  against 
Mr.  Dutty  ? — A.  He  was  one  of  the  principle  men  enga^^ed  in  the  construction  of  the 
shade-cloth  factory  ;  and  as  to  the  rest  of  the  question,  I  should  say  yes. 


372  DIGEST    OF    ELECTION   CASES. 

6405.  Q.  And  did  he,  Sloau,  not  receive  a  large  majority  for  member  of  assembly  ia 
this  city  f— A.  He  did. 

64(K5.  Q.  Aiul  have  yon  not  umJeistood  throngh  political  circles  that  ilr.  Sloan  was 
desirons  of  being  represented  by  as  large  a  nia^jority  as  he  conld  obtain,  as  he  was  ob- 
taining prominence  in  the  State  of  New  York  as  a  prominent  candidate  before  a  Re- 
publican convention  hereafter  to  be  held  for  governor  f — A.  Yes. 

6407.  Q.  And  was  not  the  principal  tight  at  last  fall's  election  made  to  secnre  the 
election  of  Judge  Ma.son  and  increase  the  majority  for  Sloan,  as  you  understand  it  from 
Republican  iioliticians? — A.  Yes;  upon  the  Republican  side. 

6412.  Q.  From  your  knowledge  of  the  political  position  and  desires  of  Mr.  Sloan  and 
Mr.  Kingsford  as  leading  Republicans  to  secure  the  election  of  Judge  Mason,  and  the 
embarrassed  circumstances  of  the  large  number  of  their  employes  upon  the  new  build- 
ings referred  to  heretofore,  and  from  what  you  observed  and  knew  of  that  calss  of 
voters,  do  ijou  not  believe  that  a  great  many  of  them,  or  a  large  majority  of  them,  were  in- 
duced by  reason  of  their  obtainiug  employment  to  vote  for  Mason  and  Sloan  when  the 
same  was  against  their  political  predilections  ? 

(Objected  to  as  not  proper  in  rebuttal  and  as  immaterial  to  the  issue,  and  as  incom- 
•petent,  and  as  calling  for  the  belief  of  witness.     Notaries  differ,  Coon  holding  it  im- 
proper as  rebuttal.) 

A.  I  should  say  a  large  number  of  them  did. 

(See  Record,  pages  1005,  1006,  and  1007.) 
Cross-examination : 

6599.  Q.  Can  you  name  any  voter,  among  all  the  employes  engaged  in  the  construc- 
tion of  that  bitilding,  whom  you  can  swear  voted  differently  from  what  he  would  have 
voted  in  case  he  had  not  received  employment  there  1 — A.  /  have  not  sufficient  knoirledge 
how  any  of  the  men  employed  on  that  building  voted  to  sicear  positively  an  to  hoir  they  voted. 

6600.  Q.  Can  you  name  a  single  eniployd  whoni  you  have  good  reason  to  suppose  voted 
differently,  by  reason  of  that  employment,  from  what  he  otherwise  would  have  done? 
— A.  I  have  reason  to  believe  that  one  William  Kelly,  I  think  is  his  name,  voted  differ- 
ently by  reason  of  his  working  upon  that  building,  from  what  he  would  had  he  not 
been  at  work  on  the  building. 

6601.  Q.  Name  another  such  employ^. — A.  I  do  not  now  call  to  mind  the  name  of  any 
other  employe  whom  I  have  as  good  reason  to  believe  voted  differently  last  fall  from 
his  conviction  as  in  case  of  William  Kelly. 

6602.  Q.  Have  you  any  information  that  leads  you  to  believe  that  the  vote  of  William 
Kelly  was  changed  by  any  undue  or  iniprojjer  influence  *  And,  if  yon  have,  you  may 
state  what  that  iuformatiou  was. — A.  I  have  knowledge  and  information  to  lead  me  to 
believe  that  he  voted  in  the  manner  he  did  from  the  fact  of  his  laboring  upon  that 
building,  bat  the  nature  of  that  information  I  decline  to  give. 

6603.  Q.  Will  you  swear  that  his  services  were  procured  or  were  continued  there 
under  an  agreement  or  understanding  that  he  should  vote  for  any  particular  candidate 
or  any  particular  ticket? — A.  I  will  not  so  swear. 

6604.  Q.  I  ask  for  the  source  of  your  information  which  bears  you  out  in  the  state- 
ment you  have  made  in  reference  to  William  Kelly's  voting. — A.  Partly  from  himself. 

6605.  Q.  And  psvrtly  from  what  other  source,  if  any  ? — A.  My  impression  is  that  my 
other  source  of  information  was  from  John  Radigan. 

6606.  Q.  Do  you  now  decline  to  state  the  nature  of  that  information,  or  what  it  was  ? 
—A.  I  do. 

6615.  Q.  You  were  present  occasionally,  and  saw  the  work  going  on  in  Kingsford's 
new  building  last  fall,  did  you  not? — A.  I  was,  occasionally. 

6618.  Q.  Can  yon  name  an  employ^  in  that  whole  force  whose  vote  you'know  to  have 
been  changed  by  his  employment  there  ? — A.  I  do  not  know  positively,  at  least  posi- 
tively enough  to  swear  to  it,  how  these  employ6s  voted,  but  can  only  judge  from 
appearances  and  hearsay  as  to  how  they  voted. 

6619.  Q.  Can  you  give  the  name  of  any  employd  on  that  force  whom  yon  have  satis- 
factory reasons  for  supposing  voted  otherwise  than  what  ho  would  by  reason  of  such 
employment  ? — A.  I  have ;  will  name  Mr.  Cody. 

6623.  Q.  Name  another  whose  vote  you  think  was  changed  by  such  employment. — A. 
I  think  Mr.  Brennan's  was — Michael,  I  think ;  but  am  not  sure  about  that.  It  was  an 
elderly  gentleman. 

6626.  Q.  Are  the  three  men,  Kelly,  Cody,  and  Brennan,  men  of  good  reputation  for 
truth  and  veracity  ? 

(Objected  to  as  incompetent  and  immaterial,  and  nothing  more  than  a  cross-exami- 
nation upon  a  cross-examination.     Notaries  differ;  Coon  for  admission.) 

A.  I  decline  to  answer  under  the  notice. 

6629.  Q.  Do  you  know  what  proportion  of  the  employes  upon  Kingsford's  now  build- 
ing were  Republicans  and  what  Democrats  and  Greenbackers  ? — A.  I  do  not. 

6630.  Q.  Have  you  any  knowledge  of  the  politics  of  those  men  sufficient  to  enable 
you  to  express  an  intelligent  opinion  as  to  how  many  votes  were  changed,  if  any,  by 
reason  of  their  employment  in  the  construction  of  those  buildings? 


DUFFY    VS.    MASON.  373 

(Objected  to  as  beiug  a  rei)etitiou,  tlie  witness  having  already  answered.) 
A.  I  liave  no  knowledge  of  how  many  votes  were  changed  by  reason  of  their  employ- 
ment on  those  two  buildings. 

(See  Record,  pages  1025,  1226,  and  1027.) 

Very  little,  if  auy,  importance  can  be  attached  to  the  evidence  so 
rendered  by  Mr.  Judson,  as  the  facts  npon  which  he  bases  his  belief 
and  expres.ses  the  opinion  that  a  large  number  of  the  emi)loyes  engaged 
in  the  construction  of  said  buildings  were  improperly  inllueuced  to  vote 
for  the  contestee  are  very  meager  and  unsatisfactory.  He  is  only  able 
to  name  three  men,  out  of  hundreds  engaged  in  the  erection  of  the  build- 
ings, who  were,  by  reason  of  their  employment,  constrained  to  vote  against 
their  political  convictions,  and  his  entire  information  as  to  their  so  voting 
is  purely  hearsay,  and  must  be  excluded  under  the  rule  to  which  we 
have  above  referred,  and  in  one  instance  he  even  refused  to  disclose  the 
nature  of  the  information  acijuired  by  him. 

The  contestant's  purpose  in  introducing  this  evidence  was  to  create 
the  impres.sion  that  Kingsford's  object  in  constructing  the  building 
erected  by  him  was  to  furnish  employment  to  a  large  number  of  labor- 
ers, so  as  to  enable  him  to  control  their  votes  at  the  approaching  elec- 
tion in  favor  of  the  contestee,  and  that  he  did  in  that  manner  influence 
them  to  vote  for  the  contestee  against  their  will ;  but  this  charge  has 
been  com]>letely  refuted  by  the  evidence  produced  by  the  contestee. 

The  contestant  failed  to  call  a  single  one  of  the  many  employes  en- 
gaged in  the  construction  of  the  buildings  to  prove  that  he  or  any  other 
employ«i  was  in  the  slightest  manner  interfered  with  in  the  full  enjoy- 
ment of  his  rights  as  a  voter,  and  has  introduced  no  evidence  to  justify 
his  assertion  that  the  buildings  were  constructed  for  the  purpo.se  of 
giving  temporary  employn)ent  to  idle  laborers  on  the  eve  of  the  election 
"  with  a  view  to  exercise  a  control  over  their  votes  as  an  incident  to 
their  employment,"  as  charged  by  the  contestant.  While,  on  the  other 
hand,  the  contestee  has  clearly  and  satisfactorily  shown  tlie  urgent  ne- 
cessity that  existed  for  the  construction  of  the  buildings  at  that  time, 
and  has,  in  like  manner,  established  by-  the  evidence  of  a  large  number 
of  persons  who  voted  for  the  contestant,  and  who  were  engaged  in  the  con- 
struction of  the  buildings,  that  men  irrespective  of  their  political  views 
were  employed  to  perform  the  labor,  and  tliat  no  effort  was  made  by 
Kingsford,  or  any  other  person,  to  control  or  influence  in  any  manner 
their  votes.  (See  evidence  of  Thomas  Gill,  record,  page  440 ;  Patrick 
Kelly,  pages  443  and  444;  Charles  S.  Newell,  pages  350,  351,  and  352; 
James  L.  Quigg,  pages  434,  435,  and  436;  Eugene  Purple,  pages  403  and 
404;  James  Cosgriff",  pages  573  and  574;  and  James  Katigan,  pages  345, 
346,  and  347.) 

In  view  of  this  evidence,  we  unhesitatingly  say  that  the  contestant 
has  utterly  failed  to  establish  the  truth  of  his  charge. 

lY. 

The  evidence  introduced  to  sustain  this  charge,  like  that  offered  by 
the  contestant  in  support  of  other  charges,  consists  mainly  of  proof  as 
to  the  existence  of  rumors  that  certain  voters  were  bribed  to  vote  for 
the  contestee  with  money  furnished  for  that  purpose  by  the  contestee. 
The  contestant  asserts  tliat  the  contestee,  a  few  days  prior  to  the  elec- 
tion, placed  in  the  hands  of  an  agent  at  Oswego  $1,500,  to  be  used  in 
bribing  voters,  and  to  sustain  this  assertion  he  relies  on  the  evidence  of 
Philo  Bundy,  Samuel  B.  Burchard,  and  George  W.  Woods. 

Bundy  testifies  that  Burchard  informed  him  the  day  after  the  election 


374  DIGEST  OF  ELECTION  CASES. 

/ 
that  eontestee  liad  l)rouf>lit  to  C)swej>()  $1,500,  on  the  Saturday  previous 
to  the  ek'ction,  to  use  wliere  it  would  do  the  most  good  (Kecord,  ])age  36). 
He  further  says:  "1  did  not  believe  it.  I  had  no  reason  to.  *  *  • 
I  took  a  decided  interest  in  the  election  of  Mr.  Dulfy  for  Congress" 
(page  — ). 

Bu<;hard  testifies  that  he  did  not  make  any  such  statement  to  Bnndy, 
and  that  he  does  not  know  of  eontestee  bringing  to  Oswego  any  money 
to  be  used  directly  or  indirectly  to  advance  his  election  at  any  time 
during  the  campaign  (Kecord,  ])age  79). 

George  W.  Woods  testifies  that  one  Henry  H.  Lyman  stated  in  his 
presence,  a  few  days  after  the  election,  that  the  eontestee  had  furnished 
$1,500  to  corrupt  the  voters  of  Oswego,  and  that  it  had  b«'en  placed  in 
the  hands  of  Elias  Root  for  that  purpose  (Record,  pages  1058  and  10G8). 

Henry  H.  Lyman  testifies  that  he  did  not  make  any  such  statement 
to  Woods,  or  to  any  other  jjcrson,  and  that  he  does  not  know  anything 
as  to  eontestee  bringing  money  to  Oswego  and  placing  it  in  the  hands 
of  Root,  or  any  other  person,  to  aid  in  his  election  (Record,  page  — ). 

Elias  Root  testifies  that^  there  was  no  money  placed  in  his  hands  by 
the  eontestee,  or  any  other  person,  for  the  purpose  of  advancing  con- 
testee's  election,  and  that  he  does  not  know  of  money  being  placed  in 
the  hands  of  any  person  in  Oswego  for  any  such  purpose  (Record, 
page  — ). 

A  direct  conflict  exists  between  these  witnesses  as  to  Burcbard  and 
Lyman,  or  either  of  them,  making  the  statements  imputed  to  them.  It 
is  not  necessary  for  us  to  settle  this  conflict,  as  it  is  immaterial,  so  far 
as  the  merits  of  this  case  are  involved,  whether  or  not  such  statements 
were  actually  made  by  Burchard  and  Lyman,  as  they  could  in  no  man- 
ner, by  such  statements,  atfect  the  rights  of  the  eontestee,  unless  Bur- 
chard and  Lyman  were  his  agents,  and  authorized  to  sjjeak  for  him,  and 
there  is  no  proof  that  any  such  agency  ever  existed.  ]S'o  competent 
evidence  has  been  introduced  showing  or  tending  to  show  that  the  eon- 
testee furnished  money  for  any  such  purpose.  Bundy,  who  zealously 
supported  the  contestant,  says  that  he  does  not  believe  that  any  such 
money  was  furnished  by  the  eontestee. 

The  only  chaiges  relating  to  the  bribery  of  voters  worthy  of  sjpecial 
notice  are  those  relating  to  James  Gilboy  and Hollingsworth. 

Gilboy  testifies  that  Walt.  Cushman,  then  a  student  in  the  law  oflSce 
of  the  eontestee,  paid  him,  on  the  day  of  the  election,  fifty  cents  for 
voting  for  the  eontestee;  that  he  went  to  the  polls  with  Cushman,  who 
gave  him  a  paster  with  the  contestee's  name  on,  which  was  i)asted  on  the 
regular  Democratic  ticket  over  the  contestant's  name,  and  that  Cushman 
watched  and  saw  him  vote  that  ticl^et  (Record,  i)age  906). 

G.  G.  W^aldron  testifies  that  Gilboy  proniised  him  the  day  before  the 
election  that  he  would  vote  for  the  eontestee,  and  told  the  witness  to 
watch  him  ^yhen  he  came  to  vote  and  give  him  a  Mason  ticket,  and  he 
would  vote  it,  and  that  at  the  election  the  next  day  the  witness  gave 
Lim  a  Mason  ticket,  and  went  with  him  to  the  polls  and  saw  him  deposit 
it,  and  that  Cushman  was  not  i)resent  (Record,  page  1139). 

The  evidence  also  shows  that  Gilboy.  who  is  a  liostler,  is  a  man  of 
bad  habits,  and  has  been  in  jail  at  diflerent  times,  and  that  his  character 
and  reputation  in  the  community  where  he  resides  is  bad  (Record,  page 
1135).  It  is  conceded  by  the  contestant  that  Gilboy,  while  testifying  as 
a  witness,  was  intoxicated.  In  view  of  the  character  of  this  witness — 
his  intoxicated  condition  while  testifying,  the  many  glaring  contradic- 
tory and  inconsistent  statements  in  his  evidence,  his  self-confessed 
infamy  in  sellmg  his  vote,  and  the  evidence  of  W^aldron  to  which  we 


DUFFY    VS.    MASON.  375 

have  alluded,  we  are  not  favorably  impressed  with  the  iutegrity  or  truth- 
fuluess  of  Gilboy,  and  must  reject  his  evideuce. 

As  to  Hollinpsworth,  some  doubt  exists  as  to  his  qualifications  as  an 
elector,  and  it  appears  from  the  evidence  that  Holliii^jsworth,  since  the 
election,  has  stated  to  different  persons  that  he  received  one  dollar  from 
Cushman  for  voting  for  the  contestee,  and  that  the  money  was  paid  to 
him  after  the  election.  Xeither  Cushman  nor  llollingsworth  were  exam- 
ined as  witnesses.  Conceding  that  Hollingsw  orth's  statement  is  true,  it 
does  not  affect  the  contestee,  as  the  evidence  fails  to  connect  him  in  any 
manner  with  the  transaction.  A  candidate  cannot  and  ought  not  to  be 
held  responsible  for  all  the  imprudent  and  censurable  acts  of  indiscreet 
friends,  who,  in  the  zealous  adv;ocacy  of  his  election,  resort  to  imi)roper 
means  of  securing  that  result  without  his  knowledge,  and  which  be,  if 
consulted,  would  condemn,  unless  the  voters  affected  by  such  means  are 
suflBcieut  in  number  to  change  or  render  uncertain  the  result  of  the 
election. 

V. 

The  evidence  shows  that  fourteen  students  of  Madison  University,  at 
the  town  of  Hamilton,  voted  at  this  election  (Record,  page  316).  Their 
names  are  U.  B.  Grant,  B.  J.  Mix,  J.  L.  Kneeland,  J.  G.  Simons,  M.  L. 
Eugg,  P.  H.  Moore,  W.  C.  Phillips,  W.  W.  Staples,  A.  M.  Tuttle,  C.  H. 
Powers,  Ira  Hall,  James  Benedict,  George  Baker,  A.  G.  Cole,  and  Hutch- 
inson ;  and  it  is  safe  to  infer  from  the  evidence  that  all  of  them  except 
one  voted  for  the  contestee  (Kecord,  pages  422  to  425).  The  contestant 
insists  that  these  persons  were  not  legal  voters,  and  in  support  of  his 
position  directs  our  attention  to  the  following  provisiou  of  the  constitu- 
tion of  the  State  of  New  York: 

§  3,  Article  2.  For  tbe  purpose  of  voting,  no  person  shall  be  deemed  to  have  gained 
or  lost  a  residence  by  reason  of  his  presetice  or  absence  while  employed  in  the  service  of 
the  United  States,  nor  while  engaged  in  the  navigation  of  the  waters  of  the  State  or 
of  the  United  States,  or  of  the  high  seas,  nor  iphile  a  student  of  any  seminary  of  learning, 
nor  while  kept  in  any  almshouse  or  other  asylum  at  public  expense;  nor  while  con- 
fined in  aiiy  public  prison. 

Prior  to  the  election  in  controversy  a  case  was  tried  before  Judge 
Wallace,  of  the  United  States  district  court,  at  Syracuse,  N.  Y.,  wherein 
a  stmlent  at  St.  Bonaventure  College,  at  Allegany,  Cattaraugus  County, 
Kew  York,  was  indicted  for  illegal  voting.  Judge  Wallace,  in  referring 
to  the  i)rovisious  of  the  constitution  above  cited, said: 

Of  course,  the  defendant  was  not  a  resident  of  both  Orleans  County  and  Cattaraugus 
County  ;  he  conld  reside  in  one  county  only  for  the  purpose  of  exercising  the  riglit.  of 
suffrage.  It  appeal's  indisputably  that  until  September,  1875,  he  was  a  resitient  of  Or- 
leans Couuty,  and  was  a  legal  voter  there.  Now.  the  pre<uniption  of  tbe  law  is  that 
he  couliuued  to  be  a  resident  of  that  county,  in  the  absence  of  evidence  to  the  con- 
trary, and  the  whole  case  may  therefore  be  determined  by  ascertaining  wliether  or  not 
ho  acquired  a  new  resid<-nce  in  Cattaraugus  County — whether  the  evidence  adduced 
overcomes  the  legal  presumpt  on  to  which  I  have  referred.  And  it  is  at  this  ]«>int 
that  the  bearing  and  effect  of  the  constitutional  provisiou  found  in  section  three  of  ar- 
ticle two  of  the  constitution  of  this  State  becomes  important.  The  langu.age  there 
employed  is :  "  For  the  purpose  of  voting,  no  person  shall  be  deemed  to  have  gained  or 
lost  a  residence  by  reason  of  liis  presence  or  absence  while  a  student  of  any  seminary 
of  learning."  By  force  of  this  language  it  is  clear  that  defendaut  neither  lost  his  res- 
idence in  Orleans  County  nor  gained  a  residence  in  Cattaraugus  Couuty  merely  be- 
cause of  his  a|i|»earance  in  the  latter  place  as  a  .student  at  ihe  college.  Now,  I  do  not 
pretend  to  instruct  you  that  this  constitutional  provisiou  precludes  a  student  from  ac- 
quiring a  residence  at  the  place  where  he  is  atteu<ling  college,  but  the  fact  must  be 
established  by  evideuce  other  than  that  which  is  afforded  by  this  sojourn  in  the  place 
as  a  college  student.  A  change  of  residence  may  be  effected  by  a  change  of  location 
with  the  intent  to  make  that  location  a  new  home,  as  distinct  from  an  intent  to  return 


376         'digest  of  election  cases. 

when  some  temporary  purpose  is  accomplished.  But  a  change  of  residence  is  not 
effected  by  intention  alone,  nor  by  change  of  location  al>ne.  Both  must  occnr.  And 
the  intent  must  be  evinced  by  consistent  acts  which  denote  an  abandonment  of  the 
former  residence,  and  the  selection  of  a  new  home.  Yon  may  tind  here  that  defendant 
never  intended  to  return  to  Orleans  County  as  his  home,  from  his  declarations  and  his 
conduct,  but  you  must  also  find,  before  you  can  decide  that  he  can  acquire  a  new  resi- 
dence, that  he  intended  to  luake  Cattaraugus  County  liis  future  home,  and  evinced 
that  intent  by  corroborative  acts.  It  therefore  follows,  if  the  evidence  does  not  dis- 
close any  circumstances  which  distinguish  his  case  from  that  of  the  ordinary  one  of  a 
college  student,  intent  upon  prosecuting  his  studies,  but  who  has  left  the'  paternal 
roof  to  mark  out  his  own  future  for  himself,  it  fails  to  meet  the  requirements  of  the 
law  for  the  acquisition  of  a  new  residence,  and  the  main  question  in  the  case  will  turn 
upon  your  conclusion  upon  the  subordinate  one.  In  conclusion,  it  is  appropriate  to 
remind  you  that,  although  the  defendant  may  have  conscientiously  believed  he  had 
acquired  a  residence  in  Cattaraugus  County,  ami  was  exercising  a  lawful  right  in 
voting  there,  his  violation  of  the  law  is  not  thereby  purged  of  the  criminal  intent 
which  is  the  essential  element  of  every  crime.  Every  citizen  is  presumed  and  required 
to  know  the  law.     (See  Record,  page.  — ) 

The  evidence  in  this  case  shows  that  it  has  been  customary  for  many 
years  for  the  committees  of  the  different  political  parties  in  Madison 
Connty  to  secure  the  attendance  of  these  students  of  Madison  University 
at  the  polls  as  voters  (see  Record,  page  714).  Some  years  as  high  as  75  stu- 
dents or  more  of  the  university  voted  at  the  village  of  Hamilton  (Record, 
page  710),  while  the  number  who  voted  at  the  election  in  dispute  was  14. 
One  of  the  witnesses,  Edward  D.  Van  Slyck,  testifies  that  the  reduction 
in  number  at  the  election  in  controversy  was  due  to  Judge  Wallace's 
opinion,  above  set  forth,  "  which  was  taken  as  the  guide  and  became  the 
decisive  ground  upon  which  they  claimed  their  right  to  vote,"  and  that 
the  contestee  advised  the  students  "that  no  one  shouhl  vote  unless  he 
was  perfectly. satisfied  that  he  was  a  legal  voter,  and  advised  them  to 
keep  strictly  within  Wallace's  opinion."    (See  Record,  page  710.) 

Thomas  Beal,  one  of  the  contestant's  witnesses,  was  examined  as  to 
the  residence  and  qualifications  as  electors  of  those  students  who  voted 
at  the  election,  and  by  his  evidence  it  appears  that  G  of  the  14  that  voted 
are  married  men  and  haA'e  resided  at  Hamilton  for  many  years,  and  the 
witness  is  unable  to  state  that  any  one  of  these  14  students  had  a  resi- 
dence elsewhere  than  at  that  village.  (See  Record,  pages  319  to  321.) 
The  students  who  voted  were  allowed  to  do  so  after  b<*ing  first  sworn  as 
to  their  qualifications  as  electors.  (Record,  page  316.)  Although  the 
burden  of  proving  that  these  students  were  not  legal  voters  devolved 
on  the  contestant,  he  has  introduced  no  proof  establishing  or  tending  to 
establish  that  fact.  He  relies  alone  on  tlie  fact  that  they  were  then  stu- 
dents at  the  university,  which  of  itself  creates  no  presumption  that  they 
were  not  legal  voters  of  the  town  of  Hamilton.  Tlie  record  shows  that 
subsequent  to  the  election  several  of  the  students  who  so  voted  were 
arrested  on  a  charge  of  illegal  voting,  and  their  examination  on  that 
charge  occurred  before  C.  M.  Deunison,  United  States  commissioner,  and 
resulted  in  their  discharge,  The  following  is  the  opinion  rendered  in 
the  case  by  Commissioner  Denuison : 

United  States  of  America  against  Pitt  H.  Moore ;  same  against  Brenett  J.  Mix;  same 
against  Levwick  L.  Kneeland,  by  C.  M.  Dennison,  commissioner. 

In  these  cases  the  defendants  are  charged  with  illegal  voting  at  the  last  general 
election  for  Representative  in  Congress,  and  the  cases  are  all  substantially  alike  and 
may  all  be  decided  together.  The  evidence  in  these  cases  is  undisputed  and  in  no  way 
coutlicting,  and  shows  that  all  of  the  deteudan  s  are  students  of  some  one  of  the  de- 
partments of  Madison  University;  that  each  had  entirely  and  absolutely  severed  his 
connection  with  his  former  home,  aud  supported  himself  by  his  own  earnings,  together 
with  what  aid  he  received  from  the  beneficiary  funds  of  the  institution,  and  had  gone 
to  the  village  of  Hamilton  with  the  intention  of  nuiking  that  his  only  home  aud  resi- 
dence, at  least  while  in  attendance  at  the  university,  and  had  so  remained  there  the 


DUFFY    VS.    MASON.  377 

time  required  by  law  to  become  a  voter.  In  my  opinion  there  conld  be  no  question 
but  tliat  each  of  these  young  men  would  have  been  a  legal  voter  at  Hamilton  had  he 
gone  there  in  the  manner  in  which  he  did  and  perforiifced  the  same  acts  which  he  did, 
were  it  not  for  the  fact  that  they  came  within  the  classes  of  persons  enumerated  in 
article  2,  section  3,  of  the  constitution  of  this  State,  and  that  the  determination  of  these 
cases  turns  wholly  upon  the  meaning  of  that  section.  It  is  claimed  by  the  prosecution 
that  this  section  of  the  constitution  is  prohibitory,  and  that  no  person  can  possibly 
gain  a  residence  while  a  student  of  any  seminary  of  learning.  I  cannot  concur  in  this 
doctrine.  This  section  of  the  amended  constitution  is  the  same  as  in  the  constitution 
of  1840,  and,  substantially,  in  my  opinion,  a  simple  enunciation  of  the  conmion  law, 
and  meant  rather  as  a  protection  than  as  a  prohibition,  and  is  not  intended  to  prevent 
any  class  of  persons  from  changing  their  place  of  residence  and  gaining  a  new  voting 
residence,  bnt  r.ather  to  protect  persons  who  shall  leave  their  actual  i)ermaneut  resi- 
dence with  an  intention  of  going  temporarily  in  some  of  the  occupations  or  callings 
in  said  section  enumerated,  and  at  the  completion  of  said  purpose  to  return  to  their 
actual  residence,  and  being  thereby  disfranchised  during  such  absence.  In  my  opin- 
ion this  section  of  the  constitution  is  not  intended  to  disfranchise  any  citizen  of  the 
State  of  Xew  York,  but  rather  to  protect  every  citizen  of  the  State  in  the  full  exer- 
cise of  the  right  of  elective  franchise.  It  is  further  claimed  by  the  prosecution  that 
these  cases  are  ]>arallel  and  at  all  fours  with  the  case  of  "The  United  States  against 
McCarthy,"  decided  by  Judge  Wallace  January,  1878.  The  defendants  in  these  cases 
had  the  opinion  of  Judge  Wallace  in  that  case  and  examined  the  same  carefully  and 
took  legal  advice  thereon  before  offering  to  vote,  and  upon  such  examination  and  ad- 
vice concluded  that  their  cases  did  not  come  within  that  decision,  and  that  there  was 
nothing  contained  therein  which  would  prevent  their  voting,  and  they  all  voted  after 
challenge  and  took  the  oaths  required  by  law.  These  defendants  are  all  candidates 
for  the  ministry,  and,  in  my  judgment,  acted  conscientiously  and  with  great  care,  and, 
as  I  construe  the  law,  were  entirely  correct  in  their  conclusion  that  they  were  legal 
voters  of  the  place  where  they  voted.  It  is  ordered  that  each  of  the  defendants  be,  and 
they  are,  discharged.     (See  Record,  pages  117y  and  1171.) 

The  evidence  is  wholly  insufficient  to  authorize  ns  to  determine  that 
the  students  who  so  voted  were  illegal  voters. 

In  conclusion,  we  are,  for  the  reasons  stated,  fully  satisfied  that  the 
contestant  is  not  entitled  to  the  seat  in  controversy,  and  therefore  rec- 
ommend the  passage  of  the  following  resolutions  : 

Besolved,  That  Sebastian  Dufty  is  not  entitled  to  a  seat  iu  the  Fortyr 
sixth  Congress  as  a  Representative  from  the  twenty-fourth  Congress- 
ional district  of  New  York. 

Resolved.,  That  Joseph  Mason  is  entitled  to  a  seat  in  the  Forty-sixth 
Congress  as  a  Representative  from  the  twenty -fourth  Congressional 
district  of  New  York. 

WALPOLE  G.  COLERICK.  ' 

WM.  M.  SPRINGER. 

SAM'L  L.  SAWYER. 

J.  B.  WEAVER. 

W.  A.  FIELD. 

W.  H.  CALKINS. 

J.  H.  CAMP. 

J.  WARREN  KEIFER. 

E.  OVERTON,  Jr. 

VAN  H.  MANNING. 

EMORY  SPEER. 

R.  F.  ARMFIELD. 

We  concur  in  the  conclusion  of  the  foregoing  report  and  in  the  resolu- 
tions recommended. 

E.  C.  PHISTER. 

F.  E.  BELTZ HOOVER. 


378  DIGEST  OF  ELECTION  CASES. 

JAMES  E.  O'HABA  vs.  WILI^IAM  H.  KITCIIIN. 

Second  Congressional  District  of  North  Carolina. 

Contestant  claims  in  his  notice  of  contest  that  votes  were  rejected  by  the  county 
canvassing  boards  in  several  counties.  In  the  record  there  appears  no  return  of 
service  of  notice  on  con testee.  The  contestee  in  his  answer  says  "no  lawful  or 
sufficient  notice  of  said  contest  has  been  served  upon  him  *  *  *  Avithin  the 
time  prescribed  by  law,"  viz,  "within  thirty  days  after  the  result  of  such  election 
shall  have  been  determined  by  the  officer  or  board  of  canvassers  authorized  by 
law  to  determine  the  same." 

Held,  That  it  cannot  be  determined  from  the  record  when  the  result  of  the  election 
was  "  determined  by  the  officer  or  board  of  canvassers  authorized  by  law  to  de- 
termine the  same." 

Held,  That  all  testimony  should  be  taken  within  the  time  prescribed  by  statute ;  and 
the  practice  of  parties,  by  agreement  between  tliemselves,  to  postpone  the  time 
of  taking  testimony,  without  any  previous  authority  of  the  House,  is  indefensi- 
ble. If  parties  agree  to  an  extension  of  time,  the  agreement  should  be  in  writ- 
ing, and  application  be  at  once  made  to  the  House,  when  in  session,  for  a  ratifi- 
cation of  such  agreement. 

The  contest  is  dismissed  because  the  evidence  was  not  taken  in  time. 

Reported  to  the  House  February  17,  1881,  and  ordered  printed,  and 
no  further  action  taken. 


February  17,  1881. — Mr.  Field,  from  the  Committee  on  Elections 
submitted  the  following 

REPORT: 

The  Committee  on  Elections^  to  whom  was  referred  the  contested-election^ 
case  of  James  E.  O^Hara,  contestant,  against  William  H.  Kitchin,  con- 
testee, from  the  second  Congressional  district  of  North  Carolina,  respect- 
fully report  as  folloics  : 

This  contest  arises  out  of  an  election  held  on  the  5th  day-of  Nov^em- 
ber,  1878,  for  a  Representative  in  the  Forty-sixth  Congress  of  the  United 
States  from  the  second  Congressional  district  of  North  Carolina. 

In  his  notice  of  contest  the  contestant  complains  of  the  rejection  of 
votes  by  the  county  canvassing  boards  in  the  counties  of  Edgecombe, 
Halifax,  Craven,  and  Lenoir.  In  the  record  there  appears  no  return  of 
service  of  the  notice  of  contest  on  the  contestee ;  but  the  contestee, 
some  time  in  April,  1879,  served  his  answer  to  the  notice  of  contest 
upon  the  contestant,  in  which,  among  other  things,  he  says — 

That  he  ought  not  to  be  called  upon  to  answer  said  notice  of  contest,  because  he 
says  no  lawful  or  sufficient  notice  of  said  contest  has  been  served  upon  him  by  the 
said  contestant,  or  by  any  one  for  him,  in  the  manner  or  within  the  time  prescribed 
by  law.  Nevertheless,  this  contestant,  saving  and  reserving  to  himself  all  banefit  of 
the  matters  and  things  stated  above,  and  fully  relying  on  the  same,  yet  for  answer 
to  the  said  notice  of  contest,  if  the  same  shall  be  required  of  him,  saith,  «&c. 

It  was  stated  orally  by  the  contestant  that  he  sent  seasonably  to  the 
contestee  a  copj^  of  his  notice  of  contest,  and  was  informed  by  the  mes- 


o'hara  vs.  kitchin.  379 

senger  that  he  had  left  tlio  same  at  the  i)lace  of  business  of  the  cou- 
testee,  but  there  is  no  affidavit  or  deposition  of  the  messengrer.  It  was 
stated  orally  by  the  contestee  that  he  never  received  any  sncli  notice  of 
contest,  and  had  no  knowledge  that  any  such  had  been  left  for  him  until 
he  was  informed  by  the  clerk  of  the  Committee  on  Elections,  during  the 
extra  session  of  Congress,  that  such  notice  of  contest  had,  pursuant  to 
the  order  of  the  House,  been  transmitted  to  the  Committee  ou  Elec- 
tions by  the  Clerk  of  the  House. 

The  contestee,  on  or  about  the  29th  of  April,  1879,  prepared  his  au- 
swer  as  aforesaid.  The  contestee,  at  the  opening  before  the  committee, 
insisted  upon  liis  objection  that  the  contest  ought  to  be  dismissed  on 
account  of  the  want  of  any  proper  service  of  the  notice  of  contest. 

Section  lOo  of  the  Eevised  Statutes  of  the  United  States  provides: 

Whenever  any  person  intends  to  contest  an  election  of  any  member  of  tbe  House  of 
Representatives  of  the  United  States,  he  shall,  within  tliirty  d&ys  after  the  resnlt  of 
such  election  shall  have  been  determined  by  the  otficer  or  board  of  canvassers  author- 
ized by  law  to  determine  the  same,  give  notice  in  writing  to  the  member  whose  seat 
he  designs  to  contest  of  his  intention  to  contest  the  same,  and  in  such  notice  shall 
specify  particularly  the  grounds  upon  which  he  relies  in  the  contest. 

There  is  no  evidence  in  the  case  that  enables  the  committee  to  decide 
when  the  result  of  this  election  was  determined  by  the  officers  or  board 
of  canvassers  authorized  by  law  to  determine  it.  It  appears  by  the 
statement  of  the  jiarties  that  certain  legal  proceedings  were  had,  a  re- 
port of  which  was  i)rinted  in  the  80th  North  Carolina  Keports,  page 
103  (O'Hara  vs.  Powell),  and  a  writ  of  mandamus  was  obtained  against 
certain  county  canvassing  boards.  It  was  said  that  by  an  appeal  to  the 
supreme  court  of  the  State  of  North  Carolina  the  final  decision  of  the  ap- 
plication for  mandamus  was  postponed  until  after  the  expiration  of  are- 
straining  order  which  had  been  obtained  against  the  State  «^auvassing 
board,  forbidtling  theuj  fnan  canvassing  the  returns  from  this  second 
Congressional  district.  These  proceedings  make  it  uncertain,  as  a  matter 
of  conjecture,  when  the  result  of  the  election  was  determined,  and  there 
is  no  evidence  whatever  before  the  committee  when  in  fact  it  was  de- 
termined, and  the  committee  do  not  know  from  what  time  the  thirty  days 
within  which  the  notice  of  contest  must  be  given  began  to  run.  The 
contestant,  therefore,  has  not  proved  that  he  served  his  notice  of  con- 
test within  thirty  days  after  the  result  of  the  election  was  determined, 
or  that  he  ever  served  it  at  all.  ^ 

A  copy  of  the  answer  of  the  contestee  was  served  upon  the  contest- 
ant on  the  20th  day  of  April,  1879. 

Section  107  of  tl»e  Kevi.sed  Statutes  is  as  follows  : 

In  all  contest<-d-clection  cases  tbe  time  allowed  for  taking  testimony  shall  be  ninety 
days,  and  the  testimony  shall  be  taken  in  the  following  order:  Tbe  contestant  sliall 
take  testimony  «luring  the  lirst  forty  days,  the  returned  member  during  the  succeeding 
forty  days,  and  the  contestant  may  take  testimony  in  rebuttal  during  the  remaiuiug 
ten  days  of  said  period. 

Section  2,  chapter  119,  of  the  statutes  of  1875  is  as  follows  : 

That  section  107  of  the  Revised  Statutes  of  the  United  States  shall  be  construed  as 
requiring  all  testimony  in  cases  of  contested  election  to  be  taken  within  ninety  days 
from  theday  ou  which  the  answer  of  the  returned  member  is  served  upon  the  con- 
testant. 

In  this  case  the  earliest  testimony  taken  by  the  contestant  was  taken 
on  the  7th  day  of  November,  1879,  which  was  194  days  from  the  day 
on  which  the  answer  of  the  returned  member  was  served  upon  the  con- 
testant ;  and  the  contestee  objects  now,  as  he  objected  through  his 
counsel  at  the  time  the  testimony  was  taken,  that  the  ninety  days  for 
taking  testimony  had  expired  before  the  testimony  was  taken. 


380  DIGEST    OF    ELECTION    CASES 

The  contestant  sets  up  an  oral  argument,  as  he  alleges,  to  the  effect 
that  within  the  ninety  days  prescribed  by  law,  tl-e  exact  time  of  which 
he  does  not  fix,  he  and  the  contestee  agreed — 

That  as  to»tbe  matter  alleged  in  contestant's  complaint  as  to  the  votes  thrown  out 
and  not  coiyited  for  contestant  in  the  connties  of  Edgecombe  and  Craven,  it  would  not 
be  necessary  to  take  evidence,  as  he,  said  Kitchiu,  agreed  to  make  a  case  without 
taking  testimony. 

And  on  the  23d  day  of  April,  1880,  he  filed  an  affidavit  to  that  effect, 
as  a  foundation  for  a  motion  that  the  time  for  taking  testimony  be  ex- 
tended. The  contestee  denies  that  any  such  oral  agreement  was  made, 
and  tiled  his  affidavit  on  the  26th  day  of  May,  1880,  to  the  effect  that 
the  only  conversation  he  ever  had  with  the  contestant  on  the  subject — 

Was  an  interview  that  took  place  at  affiant's  place  of  business  in  the  latter  part 
of  August,  A.  D.  1879,  long  after  contestant's  time  for  taking  testimony  had  ex- 
pired ;  and  in  that  interview  contestant  stopped  not  more  than  two  or  three  minutes, 
and  said  to  this  affiant  that  Mr.  Day,  his  attorney,  had  told  him  to  stop  and  see 
affiant,  and  see  if  we  could  not  agree  upon  a  time  to  take  evidence,  upon  which 
affiant  replied,  **Xo  ;  we  cannot  agree  upon  anything;  if  you  expect  to  oust  me  from 
my  seat  in  Ccmgress,  you  must  proceed  strictly  according  to  the  United  States  stat- 
utes;" to  which  contestant  replied,  ''All  riijht ;  I  am  not  in  a  hurry  about  it,  for  I  do 
not  expect  to  get  my  seat  until  about  the  3d  of  March,  1831." 

The  contestee  also  filed  the  affidavits  of  Mr.  P.  H.  Whitmore  and  I. 
Rothchild,  to  the  effect  that  they  were  each  present  during  the  month 
of  August,  in  the  store  of  Kitchin  and  Kothchild,  when  said  Kitchin 
and  O'Harahad  some  conversation  relative  to  the  taking  of  testimony 
to  be  used  in  the  case  which  was  then  pending  between  them  before 
the  Congress  of  the  United  States,  and  that  each  heard  the  said  Kit- 
chin tell  the  said  O'Hara  that  if  he  wished  to  get  him  out  of  his  seat,  he 
must  proceed  according  to  law,  and  that  O'Hara  said  in  reply,  "All 
right." 

These  affidavits  were  filed  before  the  Committee  on  Elections,  to  en- 
able the  committee  to  consider  the  motion  of  the  contestant  tliat  his 
time  be  extended  for  taking  testimony,  but  the  Committee  on  Elections 
took  no  action  on  this  application,  and  the  time  for  taking  testimony 
has  never  been  extended  by  the  House  of  Representatives. 

One  purpose  of  the  statutes  of  the  United  States,  above  cited,  was 
to  compel  parties  to  a  contested  election  seasonably  to  prepare  their  case, 
so  that  it  might  have  an  early  determination  by  the  House.  The  prac- 
tice which  has  arisen  of  permitting  parties  by  agreement  between  them- 
selves to  postpone  the  time  of  taking  testimony  without  any  ])revious 
authority  of  the  House  of  Representatives,  or  any  express  ratification 
of  it  bj'  the  House,  is  an  indefensible  one,  and  has,  in  the  opinion  of  the 
committee,  been  carried  too  far.  In  many  cases  it  seems  to  be  con- 
sidered by  the  parties  that  they  can  do  as  they  please  about  it;  that  the 
contest  is  a  merely  private  one,  and  concerns  no  one  but  themselves. 
In  many  States  the  parties  are  in  the  habit  of  making  agreements  post- 
poning the  time  of  taking  testimony  as  fully  as  if  the  contest  were  a 
private  suit,  and  this  practice  has  in  some  cases  received  the  implied 
assent  of  the  House  of  Representatives.  It  may  happen,  indeed,  that 
from  unforeseen  causes  an  extension  of  time  may  be  necessary,  and  the 
House  of  Representatives  may  not  be  in  session,  and  therefore  no  pre- 
vious application  can  be  made  to  it,  but  in  such  cases,  if  the  parties 
agree  to  an  extension  of  time,  the  agreement  should  be  in  writing,  sigufld 
by  the  parties  or  their  attorneys,  and  application  should  be  at  once 
made  to  the  House  of  Representatives,  when  in  session,  for  a  ratifica- 
tion of  such  agreement. 

The  evils  resulting  from  permitting  the  parties,  at  their  own  conven- 
ience, to  regulate  the  time  of  taking  testimony,  without  regard  to  the 


o'hara  vs.  kitchin.  381 

statutes  or  the  public  interest,  are  too  serious  aud  obvious  to  require 
comment.  lu  any  case,  if  such  agreements  are  to  be  regarded,  they 
should  be  in  writing,  aud  signed  by  the  parties  or  their  attorneys.  This 
is  the  practice  of  courts  generally,  and  is  founded  on  sound  reasons.  If 
oral  agreements  are  recognized,  then  if  they  are  denied  by  either  of  the 
parties  at  the  hearing,  testimony  must  be  taken,  and  this  collateral 
issue  be  first  determined,  and  as  the  decision  may  be  such  as  one  of  the 
parties  did  not  expect,  he  may  be  put  to  the  greatest  disadvantage 
after  the  testimony  on  the  merits  of  the  case  has  been  all  taken.  The 
misunderstandings  that  often  honestly  arise  from  oral  agreements  are 
alone  sufficient  to  justify  courts  in  insistingthatnone  but  written  agree- 
ments will,  if  questioned,  be  recognized.  We  think  it  of  great  inipor- 
tance  in  election  cases  that  parties  should  understand  absolutely  that  all 
agreements  in  contravention  of  the  statutes  of  the  United  States,  in  re- 
gard to  the  taking  of  testimony,  to  be  considered  at  all,  should  be  in 
writing,  properly  signed,  and  made  a  part  of  the  record  itself.  Even 
then  the  policy  of  the  law  requires  that  they  should  not  be  regarded 
uulessit  appears  thatthey  were  bonajide  entered  into  foran  adequateand 
reasonable  cause  to  be  determined  by  the  House  of  Eepresentatives, 
either  before  or  at  the  time  of  deciding  the  election  case. 

On  this  ground  the  committee  decline  to  determine  on  the  affidavits 
the  question  whether  or  not  any  such  oral  agreement  as  the  contestant 
sets  up  was  ever  made,  and  consider  the  case  as  if  there  were  no  such 
agreement.  The  committee  might,  indeed,  in  a  case  where  testimony 
had  been  taken  out  of  time,  but  with  full  opportunity  to  the  other  party 
to  cross-examine  the  witnesses  and  exhibit  evidence  in  repl}',  aud  where 
it  was  evident  that  this  had  been  fully  done,  recommend  to  the  House, 
if  they  find  sufficient  reason  therefor,  that  the  testimony  be  considered 
as  if  taken  in  time ;  but  such  is  not  this  case,  ami  the  only  alleged  ground 
for  the  delay  in  this  case  is  that  the  dwelling-house  of  Mr.  O'Hara  was 
destroyed  by  fire,  as  well  as  all  memoranda,  facts,  and  information  iu 
writing  that  he  had  procured  necessary  to  be  used  in  the  contest.  The 
time  when  the  dwelling-bouse  was  destroyed  by  fire  is  not  stated  iu  any 
of  the  papers,  but  it  is  said  to  have  happened  in  March,  1879,  an<l  be- 
fore the  answer  of  the  contestee  was  served  on  the  contestant.  This 
does  not  seem  to  the  committee  a  sufficient  ground  for  admitting  testi- 
mony taken  one  hundred  and  ninety-four  days  after  the  service  of  the 
answer. 

The  committee,  therefore,  are  of  opinion  that  this  contest  should  be 
dismissed,  on  the  ground  that  the  testimony  was  not  taken  in  time.  If 
the  testimony  is  consulered,  which  the  committee  think  should  not  be 
done,  the  committee  think  it  insufficient  to  establish  the  contestant's 
case.  The  only  depositions  are  the  depositions  of  Albert  Hill,  Jacob  D. 
Hill,  R.  J.  Lewis,  J.  F.  Brinkley,  John  C.  Williams,  W.  A.  Duggan,  and 
W.  M.  Pippen.  The  depositions  of  all  but  Mr.  Duggan  and  ]\Ir.  Pippen 
were  taken  on  the  7th  day  of  November,  1879,  after  notice  to  Mr.  Kitchiu, 
who  appeared  by  counsel,  and  objected  to  the  taking  on  the  ground  that 
more  than  ninety  days  had  elapsed  since  the  service  of  the  answer. 

The  depositions  of  Mr.  Duggan  and  Mr.  Pippen,  taken  on  the  17th  day 
of  November,  1879,  without  any  notice  whatever,  so  far  as  it  appears, 
having  been  given  to  Mr.  Kitchin,  and  without  any  appearance  by  him 
to  the  taking,  ought  to  be  excluded  on  the  additional  ground  of  want  of 
notice,  a  defect  which  does  not  appear  in  any  sense  to  have  been  waived. 
The  depositions  of  all  these  persons,  except  Messrs.  Duggan  and  Pippen, 
do  not  show  anything  that  the  committee  can  apply  to  this  case.  In 
this  case  the  return  of  the  canvass  of  the  State  canvassing  board  is 


382  DlGEbT    OF    ELECTION    CASES. 

not  given,  and  the  committee  cannot  ascertain  what  was  included  or 
what  was  exchided  by  tliat  board,  and  they  have  nothing  before  them 
to  which  they  can  apply  any  corrections  which  the  testimony  might 
convince  them  ought  to  be  made. 

The  deposition  of  Mr.  Duggan  is  to  the  effect  that  he  is  clerk  of  the 
superior  court  of  E<lgecombe  County,  and  that  certified  copies,  marked 
from  A  to  X,  both  inclusive,  were  made  from  the  original  returns  of 
election  for  a  Kepresentative  in  Congress  from  the  second  Congressional 
district  of  the  State  of  North  Carolina,  on  file  in  his  ofUce,  and  are  true 
copies.  These  copies  purport  to  be  copies  of  the  returns  of  the  pre- 
cinct canvassing  Itoards  of  Edgecombe  County,  in  IS  precincts,  in  all 
of  which  Mr.  O'Hara  received  3,153  votes,  and  Mr.  Kirchin  1,231  votes, 
a  plurality  for  Mr.  O'Hara  of  1,922;  but  the  committee  do  not  know, 
and  cannot  ascertain  from  the  evidence,  except  as  hereinafter  stated, 
how  many  of  these  returns  are  included  in  the  canvass  and  return  made 
by  the  State  canvassing  board. 

The  deposition  of  Mr.  Pippen,  who  was  a  member  of  the  board  of 
canvassers  of  the  county  of  Edgecombe,  in  reply  to  a  question,  as  fol- 
lows :  "  State  how  many  votes  were  excluded  in  the  count  made  by  the 
board  of  county  canvassers  from  the  returns  as  made  by  the  judges  of 
election  in  the  several  townships  of  the  county  to  them,  and  why  they 
were  excluded,"  is  as  follows : 

A.  According  to  the  returns  of  the  judges  of  election,  in  township  Xo.  1,  precinct 
No.  3,  James  E.  O'Hara  received  127,  W.  H.  Kitchin  13,  and  James  H.  Harris  3.  These 
were  excluded  from  the  count  by  the  county  board  of  canvassers  on  account  of  the 
judges  of  election  not  being  sworn. 

In  township  No.  2  James  E.  O'Hara  received  383  votes;  W.  H.  Kitchin  114.  These 
were  excluded  from  the  count  by  the  county  board  of  canvassers  on  account  of  the 
judges  of  election  having  been  sworn  by  W.  T.  Cobb,  one  of  the  justices  of  the  infe- 
rior court  of  said  county  of  Edgecombe  ;  it  being  the  opinion  of  said  board  of  can- 
vassers that  he  had  no  right  to  administer  the  oath  to  them. 

In  township  No.  5  W.  H.  Kitchin  received  86  votes;  James  E.  O'Hara  277  votes. 
These  were  excluded  from  the  count  by  the  county  board  of  canvassers  on  account  of 
the  judges  of  election  having  been  sworn  by  the  registrar,  who  was  not  a  justice  of 
the  peace,  and  had  no  other  authority  to  administer  save  that  of  being  registrar ;  it 
being  the  opinion  of  said  board  of  canvassers  that  he  had  no  right  to  administer  the 
oath  to  them.      * 

In  township  No.  7,  precinct  No.  1,  W.  H.  Kitchin  received  52  votes ;  James  E. 
O'Hara  147  votes.  These  were  excluded  from  the  count  bj^  the  county  board  of  can- 
vassers on  account  of  the  judges  of  election  being  sworn  by  a  reputed  justice  of  the 
peace  from  another  county ;  the  said  board  of  canvassers  l)eing  of  the  opinion  that 
said  justice  had  no  right  to  administer  the  oath  out  of  the  county  in  which  he  was  a 
justice  as  aforesaid  to  the  judges  of  election. 

In  township  No.  7,  precinct  No.  2,  James  E.  O'Hara  received  190  votes,  and  W.  H. 
Kitchin  received  30  votes.  These  were  excluded  from  the  connt  by  tha  county  board 
of  canvassers  on  account  of  the  judges  of  election  not  having  been  sworn,  and  vague- 
ness and  irregularity  in  the  return. 

In  township  No.  11  W.  H.  Kitchin  received  56  votes  and  James  E.  O'Hara  144  votes. 
These  were  excluded  by  the  county  board  of  canvassers  on  account  of  the  judges  of 
election  not  having  been  sworn. 

In  township  No.  14  W.  H.  Kitchin  received  75  votes;  James  E.  O'Hara  83  votes; 
James  H.  Harris  5;  George  W.  Stanton  2  votes.  These  were  not  counted  by  the 
board  of  canvassers,  as  they  were  not  returned  until  the  day  after  the  board  of  can- 
vassers had  adjourned. 

This  deposition  shows  that  1,351  votes  for  Mr.  O'Hara  and  42(5  votes 
for  Mr.  Kitchin  were  returned  by  the  various  precinct  boards  as  cast 
for  then),  respectively,  which  were  not  counted  by  the  county  canvass- 
ing board,  for  the  reasons  respectively  given.  The  plurality  of  Mr. 
O'Hara  in  these  precinct  returns  is  925.  The  members  of  this  commit- 
tee in  the  report  and  views  of  the  minority  made  to  the  House  in  the 
contested  election  case  of  Jesse  J.  Yeates  against  Joseph  J.  Martin 
have  expres.sed  their  opinions  upon  the  law  of  the  State  of  North  Car- 
olina applicable  to  the  exclusion  of  the  returned  votes  of  precincts  for 


o'hara  vs.  kitchin.  383 

the  various  reasons  given  by  Mr.  Pippen,  and  beg  leave  to  refer  the 
House  to  that  case. 

It  has  been  stated  that  the  number  of  votes  received  by  Mr.  Kitchin 
and  Mr.  O'Hara,  as  canvassed  by  the  State  canvassing  board,  is  not  in 
evidence.  In  the  Congressional  Directory,  which  is  not  evidence,  Mr. 
Kitchin  is  put  down  as  having  received  10,804  votes,  against  9,062 
votes  for  Mr.  O'Hara.  If  this  statement  be  true  as  a  statement  of  the 
votes  as  canvassed  by  the  State  board  of  North  Carolina,  it  will  be  seen 
that  Mr.  Kitchin's  plurality  is  1,142,  which  is  greater  than  the  plurality 
of  925  received  by  Mr.  O'Hara  in  the  precincts  mentioned  in  Edgecombe 
County,  which  were  not  counted  by  the  county  canvassing  board.  So 
that  if  these  were  all  admitted,  upon  which,  for  the  reasons  given  in 
the  case  of  Yeates  vs.  Martin,  the  committee  do  not  agree,  there  is  no 
reason  to  suppose  that  Mr.  j'Hara  would  be  elected  ;  certainly  there  is 
no  evidence  that  he  would  be.  The  burden  of  proof  is  on  the  contest- 
ant, and  if  all  the  testimony  he  has  taken  were  admitted  and  considered, 
it  is  not  sufficient  to  enable  the  committee  to  determine  that  he  was 
elected  Representative. 

No  testimony  has  been  taken  by  Mr.  Kitchin  whatever.  He  relied 
on  his  objection  that  the  time  for  taking  testimony  had  expired  when 
Mr.  O'Hara  began  to  take  testimony.  He  had  a  right  to  rely  on  this 
objection  at  that  time,  and  even  if  the  House  should  determine  to  con- 
sider testimony  in  this  case  it  would  be  unfair  to  Mr.  Kitchin  to  do  so 
until  after  an  opportunity  were  given  him  to  take  his  testimony. 

It  is  manifest  from  the  notice  of  the  contest  and  the  answer  that  there 
were  very  grave  and  important  questions  in  dispute  in  this  election,  and 
that  the  matters  in  dispute  concerned  a  far  greater  number  of  votes  than 
the  plurality  of  the  sitting  member,  as  given  in  the  Congressional  Direc- 
tory; but  on  most  of  these  questions  there  is  no  testimony  whatever,  one 
way  or  the  other,  and  the  little  testimony  that  has  been  taken  either 
has  no  significance  at  all,  by  reason  of  a  want  of  testimony  to  connect 
it  in  any  intelligent  manner  with  the  questions  at  issue  or  from  some 
other  cause,  or  the  testimony  taken  which  is  intelligible  and  can  be  ap- 
plied to  the  case  does  not  establish  the  case  of  the  contestant.  The 
committee  repeat  that  in  their  opinion  the  evidence  in  this  case  should 
not  be  considered. 

The  committee  therefore  recommend  the  passage  of  the  following  res- 
olutions : 

Hesolvedj  That  James  E.  O'Hara  is  not  entitled  to  a  seat  in  this  House 
as  a  Representative  in  the  Forty-sixth  Congress  from  the  second  Con- 
gressional district  of  North  Carolina. 

Resolved,  That  William  H.  Kitchin  is  entitled  to  his  seat  in  this  House 
as  a  Representative  in  the  Forty-sixth  Congress  from  the  second  Con- 
gressional district  of  the  State  of  North  Carolina. 

EMORY  SPEER. 
W.  A.  FIELD. 
JJHN  H.  CAMP. 
W.  G.  COLERICK. 
SAM'L  L.  SAWYER. 
E.  C.  PMISTER. 

E.  OVERTON,  Jr. 
W.  H.  CALKINS. 

J.  W^ARREN  KKIFER. 

F.  E.  BELTZHOOVEE. 


I  concur  in  the  conclusion  reached. 


VAN  H.  MANNING. 


384  DIGEST    OF    ELECTION    CASES. 


JESSE  J.  YEATES  vs.  JOSEPH  J.  MAIlTIIs\ 

First  Congeessiois^ax.  District  of  Koeth  Carolina. 

The  contestant  alleges  iiregularities  ou  the  part  of  the  election  officers  in  rejecting 
certain  polls  ;  in  not  opening  the  polls  at  the  proper  time  ;  in  permitting  a  can- 
didate to  act  as  a  registrar  of  election  ;  and  in  counting  tickets  having  a  device 
on  them,  to  wit,  the  words  "Republican  ticket.'" 

Held,  That  it  was  illegal  for  a  county  return iug-board  in  North  Carolina  to  reject 
the  returns  from  a  township  because  the  registrar  of  election  delivered  the  returns 
to  the  returning-board  instead  of  one  of  the  judges  of  election,  there  being  no 
fraud  or  irregularity  in  the  conduct  of  the  election  shown. 

Where  it  is  clearly  shown  that  at  a  precinct  the  election  was  not  commenced  until 
three  hours  after  the  time  fixed  by  law  the  burden  of  proof  is  upon  him  who 
seeks  to  uphold  the  election  to  show  that  the  result  of  the  election  was  not  af- 
fected by  such  irregularity. 

Where,  by  law,  four  duly  qualified  inspectors  of  election  are  required  at  a  precinct, 
and  two  persons  only  act,  and  they  not  properly  qualified,  the  returns  made  by 
them  are  illegal  and  must  be  rejected. 

Where  the  law  of  a  State  declares  "that  no  person  who  is  a  candidate  for  any  ofiBce 
shall  be  a  registrar,  judge,  or  inspector  of  an  election,"  and  it  appears  that  one  of 
the  candidates  (contestee)  did  for  a  time  act  as  registrar  at  the  election,  the  vote 
of  the  precinct  must  be  rejected. 

Under  a  statute  which  provides  that  "the  ballots  shall  be  on  white  paper,  and  may 
be  printed  or  written  or  partly  written  and  partly  printed,  and  shall  ie  tvUhout 
dei'tce,"  ballots  having  at  the  head  the  words  "Republican  ticket"  must  be  re- 
jected as  being  a  device. 

The  House  adopted  the  majority  report  January  29,  1881. 


January  25,  1881. — Mr.  Speer,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

REPORT: 

The  Committee  on  Elections^  to  whom  was  referred  the  contested- election 
case  of  Jesse  J.  Yeates  vs.  Joseph  J.  Martin,  from  the  first  Congressional 
district  of  North  Carolina,  having  had  the  same  under  consideration^ 
beg  leave  to  submit  the  following  report : 

After  investigating  the  e%idence  in  this  case,  in  the  light  of  the  law 
applicable  thereto,  the  committee  respectfully  submit  the  following  re- 
port: 

The  election  which  is  contested  was  held  on  the  5th  day  of  Novem- 
ber, 1878,  to  select  a  Representative  for  the  Forty  sixth  Congress  from 
the  first  Congressional  district  of  North  Carolina.  There  were  three 
candidates  voted  for — Respass,  Independent  Republican ;  Martin,  Re- 
publican ;  and  Yeates,  Democrat. 

The  certificate  of  the  office  of  the  secretary  of  state  will  exhibit  the 
following  statement  of  the  vote,  as  appears  from  the  records  in  that 


YEATES    VS.    MARTIN.  385 

office,  from  which  it  appears  that  Martin,  contestee,  received  51  more 
votes  than  Jesse  J.  Yates  : 


'Yeates.  MarUa. 


Reapasa. 


Beaufort  County 1,397  |  1,1»  17S 

Bertie  Couuty 988  j  1,4SM>  I 

Camden  Couiity 587  1  417  8 

Chowan  County  60i  I  707  1 

Currituck  County  633  289*  1 

Davie  County  112  131  10 

GatesCounty 751  449  2 

Hertford  County  905  1,029    

Hyde  County . . '. S.Vl  406  •  104 

Martin  County 1,275  1,166  I 

Pamlico  County 423  332!  51 

Pa-squotank  County  423  749  i  2 

Perquimons  County TOO  864  1 

Pitt  Couutv 1,9.'}5  1,806  I  8 

Tyrrell  County 332  240  1  2 

W^ashington  County 4H0  832!  61 


Total 12,084     12,l;45 


The  returniug-board  of  North  Carolina,  under  the  law  of  that  State, 
consists  of  the  governor  of  the  State,  the  secretary  of  state,  the  attorney- 
general,  and  two  State  senators.  The  contestant  objected  to  the  legality 
of  the  return  of  the  county  of  Pasquotank,  but  the  board  held  that  it  bad 
no  judicial  functions,  and  declined  to  consider  theobjection.  To  consider 
that  action  of  the  returning-board  is  not  material.  The  contestant  in- 
sists that  the  county  canvassing-board  of  Pasquotank  County  acted 
illegally  in  rejecting  the  returns  of  Providence  Township,  where  contest- 
ant received  a  lujijority  of  39  votes.  The  action  of  this  board  seems  to 
have  been  arbitrary  and  iinjustitiable.  There  was  no  allegation  of  fraud 
or  irregularity  in  the  conduct  of  the  election.  It  was  not  disputed  that 
Mr.  Yeates  received  a  majority  of  39  votes  at  this  precinct,  but  the  can- 
vassing-board for  the  county  refused  to  count  this  return,  because  the 
registrar  of  the  election  at  Providence  Township  delivered  the  returns 
to  the  county  canvassing-board,  when  the  friends  of  the  contestee  in- 
sisted that  one  of  the  judges  of  the  election  was  the  proper  party  to 
deliver  those  returns.  The  judges  of  the  election  in  this  case  appointed 
the  registrar,  who  carried  up  the  returns  and  delivered  them  conformably 
to  law.  To  reject  this  return  in  this  county  was  manifestly  illegal,  and 
the  evidence  shows  that  the  contestant  is  entitled  to  have  39  votes  added 
to  his  aggregate  vote  by  the  rectification  of  this  error,  this  being  con- 
testant's majority  in  that  precinct.  Indeed  it  is  distinctly  admitted  by 
the  contestee,  on  page  29  of  his  brief:  "  We  do  not  regard  this  objec- 
tion sufficient  to  justify  the  rejection  of  the  return."  But  he  insists  that 
other  irregularities  offset  this  gain  of  the  contestant. 

He  alludes  specially  to  135  votes  claimed  by  him  in  Salem  Township 
which  were  rejected  by  the  county  canvassing-board  of  that  county,  as 
he  says,  for  the  same  reason  that  the  Providence  returns  were  rejected. 
If  this  were  sustained  by  the  facts  it  would  be  a  more  than  sufficient 
reply,  but  the  evidence  falls  far  short  of  the  allegation  of  the  contestee. 
It  is  contended  that  this  committee  cannot  reject  the  return  because 
the  only  record  in  relation  to  it  is  as  follows :  "  The  votes  a«  returned 
by  the  board  of  canvassers  from  the  precincts  of  Salem  and  Providence 
were  not  received  and  counted  by  the  board,  on  account  of  informality, 
and,  therefore,  not  counted  in  the  above  statement."  Signed  B.  F.  Over- 
man, clerk  of  the  county  board  of  county  canvassers. 
H.  Mis.  58 25 


386  DIGEST    OF    ELECTION    CASES. 

The  committee  are  not  asked  to  reject  this  vote.  It  is  already  rejected 
by  the  proper  authorities  of  the  county,  and  this  record  furnishes  a  con- 
clusion only.  Aside  from  the  fact  that  this  board,  in  the  abseuce  of 
proof  to  the  contrary,  is  entitled  to  the  legal  presumption  that  they  have 
done  their  duty,  the  evidence  discloses  that  there  were  other  and  vital 
informalities  in  the  conduct  of  the  election  at  that  precinct,  and  there  is 
no  evidence  whatever  that  the  Salem  vote  was  thrown  out  for  the  same 
reason  as  the  Providence  vote.  The  evidence  of  the  contestee  discloses. 
that  the  polls  were  not  opened  until  12  o'clock,  when  the  law  is  manda- 
tory that  they  should  be  opened  at  7 ;  that  before  they  were  opened  a 
large  number  of  the  voters  of  the  precinct  had  left ;  that  not  more  thau 
half  of  the  vote  of  the  precinct  was  polled  ;  that  there  was  no  registrar 
appointed,  and  that  officers  who  held  the  election  were  not  sworn. 

It  would  be  a  violent  assumption  on  the  part  of  the  committee  to  de- 
termine, in  the  absence  of  evidence  to  show  the  fact,  that  the  vote  of 
Salem  Township  was  excluded  for  the  same  reason  as  the  vote  of  Provi- 
dence Township.  It  is  quite  clear,  therefore,  that  the  contestant  is  en- 
titled to  39  votes  for  Providence  Township,  which  were  not  allowed  him^ 
by  this  mistake  of  the  county  canvassing-board,  and  that  contestee  is 
entitled  to  nothing  bj'  reason  of  the  rejection  of  the  vote  in  Salem. 

Your  committee  find  that  the  irregularity  of  the  election  at  the  South 
Millsprecinct  throws  the  burden  of  proof  upon  the  contestee  to  show  that 
the  result  of  the  election  was  not  aftected  by  such  irregularities.  The 
proof  shows  very  clearly  that  the  election  at  this  precinct  was  not  com- 
menced until  three  hours  after  the  time  fixed  by  law.  McCrary  on 
Elections  lays  down  the  general  principle  that  if  the  deviation  from  reg- 
ular hours  is  great,  or  even  considerable,  the  presumption  will  be  that 
it  has  affected  the  result,  and  the  burden  will  be  upon  him  who  seeks  to 
uphold  the  election  to  show  affirmatively  that  it  has  not.  (See  McCrary^ 
sec.  142.)  Under  the  circumstances  of  this  case  we  hold  that  the  stat- 
ute of  North  Carolina  was  so  far  disregarded  as  to  vitiate  the  election 
at  that  precinct.  The  obvious  purpose  of  the  law  is  to  give  all  voters 
an  opportunity  of  casting  their  ballots. 

jSTot  only  were  the  voters  of  that  precinct  deprived  of  two-fifths  of 
the  time  allowed  them  by  law,  but  the  evidence  discloses  the  fact  that 
only  about  one-half  of  the  vote  of  the  precinct  was  polled  at  the  elec- 
tion, the  registration  of  that  precinct  being  764,  and  the  vote  cast  only 
390.  There  were  then  374  voters  living  in  that  election  district  who  did 
not  vote.  There  is  other  authority  going  to  establish  the  rule,  which, 
the  committee  submits,  should  govern  the  count  of  this  precinct,  one  a 
precedent  found  in  Parson's  Select  Cases,  volume  2,  page  533.  Where 
the  law  required  the  polls  to  be  kept  open  until  10  p.  m.,  and  they  were 
closed  at  8  p.  m.,  and  it  appeared  that  a  full  vote  had  not  been  cast, 
the  court  held  the  election  to  be  void,  and  rejected  the  vote  of  the  pre- 
cinct, and  the  court  decided  as  follows :  "  When  an  election  is  closed 
up  one  or  two  hours  before  the  time,  and  it  is  manifest  from  the  assess- 
ment, compared  with  the  tally-papers,  that  there  were  numerous  citi- 
zens who  had  not  voted,  and  sutficient  to  have  changed  the  result,  we 
will,  on  this  ground,  set  the  election  aside  and  pronounce  it  utterly 
void.  So,  also,  if  they  be  opened  at  a  much  later  time  than  the  time 
prescribed  by  law."  (Chadwick  vs.  ^Melvin,  Brightley's  Election  Cases, 
page  251.) 

The  soundness  of  this  rule  is  indisputable;  otherwise  the  door  is 
opened  for  unmeasured  frauds.  Suppose,  for  instance,  in  a  heated  elec- 
tion, one  party  should  by  accident  be  prevented  from  polling  its  heavy 
vote  until  late  in  the  afternoon,  how  easy  would  it  be  for  a  partisan 


YEATES    VS     MARTIN.  ,  387 

board  of  managers  to  defeat  a  man  who  otherwise  would  be  the  choice 
of  the  people.  Aud,  agaiu,  by  refusing  to  open  the  polls  at  the  time 
fixed  by  law  in  the  forenoon  of  election  day,  and  by  delaying  for  three 
or  four  hours  and  systematically  challenging  the  voters,  and  consuming 
as  much  time  as  possible  with  each  voter,  it  would  be  easy  to  procrasti- 
nate, so  that  the  hour  of  closing  the  polls  should  arrive  and  a  large 
vote  remain  unpolled.  But  the  committee  is  not  confined  to  this  objec- 
tion to  the  legality  of  the  vote  at  that  precinct.  The  law  requires  four 
inspectors ;  there  were  only  two. 

It  is  insisted  that  a  quorum  of  the  board  was  sufficient,  but  two  is  not 
a  quorum  of  four.  The  law  requires  that  the  inspectors  should  be 
sworn  by  some  person  authorized  to  administer  an  oath.  They  were 
not  so  sworn,  but  the  sheriff,  who  was  a  mere  intruder,  and  who  made 
himself  extremely  officious  on  that  occasion,  presumed,  outside  of  his 
limited  powers,  to  administer  the  oath.  The  returns  were  signed  and 
certified  by  persons  who  really  were  not  election  officials  under  the  laws 
of  North  Carolina,  and  any  other  citizens  X)resent  had  the  same  right 
with  them  to  receive  votes  and  certify  and  send  up  a  return. 

It  is  insisted  that  one  of  the  two  insi)ectors  who  officiated  was  drunk^ 
and  unfit  for  tlie  ])roper  discharge  of  his  duties,  and  it  is  noteworthy  . 
that  with  singular  infelicity  this  gentleman  was  selected  as  the  custodian 
in  chief  of  the  ballot-box.  Bribery  and  intimidation  are  also  insisted 
upon.  The  following  extract  from  the  evidence  of  John  W.  Barrington 
(Record,  page  33)  is  very  pertinent  in  this  connection : 

Q.  Were  you  told  by  anyone  prior  to  the  day  of  the  election  that  Mr.  Kehoe,  of 
the  Kepublican  executive  committee  of  the  State  of  North  Carolina,  was  going  to 
send  down  §2,ri(H)  for  electioneering  purposes,  aud  that  a  portion  of  that  sum  would 
besent  to  you  .'—A.  I  was.  I  was  told  by  Joseph  J.  Maitiu  that  Mr.  Kehoe  was  going 
to  send  down  $2,500  to  him  (Martin)  for  electioueering  purpc»ses,  and  that  he  (Martin) 
would  send  some  of  it  to  me,  and  wanted  me  to  do  all  I  could  with  it  in  his  interest. 

But  it  is  unnecessary  for  us  to  consider  these  questions  as  controlling 
when  we  have  before  us  proof  that  the  polls  were  not  opened  in  com- 
pliance with  law ;  that  the  requisite  number  of  inspectors  did  not 
officiate;  that  those  who  did  officiate  were  not  sworn,  and  that  but 
one-half  of  the  registered  vote  at  that  precinct  was  polled.  The  com- 
mittee theiefore  feel  it  obligatory  upon  them  to  reject  entirely  the  vote 
of  that  precinct.  The  effect  of  this  conclusion  on  the  contest  is  to  with- 
draw (51  votes  from  the  certified  vote  of  the  contestee. 

At  Hamilton  precinct  likewise  the  contestee  reeeiveda  majority  of  64 
votes,  and  the  contestant  objects  to  the  vote  being  counted,  for  the  rea- 
son that  the  contestee  acted  as  the  registrar  of  the  election.  The  law  of 
North  Carolina  (Laws of  187G-'77,  section  5,  page  517)  is  mandatory  on  this 
subject.  It  declares  "that  no  person  who  is  a  candidate  for  any  office 
shall  be  a  registrar,  or  judge,  or  iuvspector  of  an  election."  It  is  impos- 
sible for  us  to  conceive  of  a  provision  more  distinct  in  its  terms,  or  one 
which  is  from  necessity  more  mandatory  than  this.  It  is  conceded  by 
the  contestee  in  his  brief  that  he  did  for  a  time  act  as  registrar  at  this 
precinct.  In  the  interest  of  the  purity  of  elections,  the  committee  are 
compelled  to  reject  the  vote  of  a  precinct  where  a  practice  so  reprehen- 
sible has  been  adopted  by  the  claimant  of  this  honorable  and  responsi- 
ble office.  No  man  should  be  permitted  to  be  judge  in  his  own  case  or 
take  advantage  of  his  own  illegal  act.  The  evidence  fails  to  show  that 
the  conduct  of  Mr.  Martin  was  justifiable,  fair,  and  impartial  while 
acting  in  this  important  official  character;  and  even  if  it  should  be 
held  that  this  conduct  on  the  part  of  the  contestee  did  not  of  itself  viti- 
ate the  result  of  the  poll  at  that  precinct,  it  will  be  admitted  that  the 


388  "  DIGEST    OF    ELECTION    CASES. 

contestee,  who  conducted  hivS  own  election  in  this  way,  must  have 
aflfirniatively  shown  that  no  illegal  advantage  was  taken  because  of  his 
action. 

Vandemere  precinct. — Here  the  polls  were  not  oi>ened  until  after  11 
o'clock — over  four  hours  after  the  time  fixed  by  law.  More  than  one- 
third  of  the  voters  at  the  precinct  failed  to  vote,  and  a  large  number  of 
voters  left  before  the  polls  were  opened,  under  the  belief  that  no  elec- 
tion would  be  held.  By  a  parity  of  reasoning,  the  committee  are  com- 
pelled to  apply  the  same  rule  to  this  case  that  they  did  to  the  South 
Mills  precinct,  and  we  have  in  this  instance  a  practical  illustration  of 
the  unfairness  practiced  by  refusing  to  comply  with  the  election  law  fix- 
ing the  hour  when  the  polls  are  to  be  opened.  At  this  precinct  Mr. 
Martin  had  a  certified  majority  of  40  votes. 

The  contestee  advances  the  claim  that  he  is  entitled  to  108  votes  not 
counted  for  him  at  Merry  Hill  precinct.  The  committee  are  of  the  opin- 
ion that  under  the  stringent  laws  of  North  Caroliua  Mr.  Martin  is  not 
entitled  to  these  votes.  The  coajmittee  come  to  this  conclusion  with 
much  reluctance.  The  reasoning,  however,  which  leads  to  this  conclu- 
siou  is  unanswerable,  and  under  the  statute  leaves  the  committee  no 
.  discretion. 

One  hundred  and  eight  votes  for  Mr.  Martin  were  thrown  out  and  not  counted,  be- 
cause they  had  on  them  the  words  "Republican  ticket,"  at  or  near  the  head  of  the 
ticket,  on  the  same  side  as  the  name  of  the  candidate  and  office.  They  were  thrown 
«ont  on  the  ground  that  the  words  "  Republican  ticket"  Mere  a  device  within  the  mean- 
ing of  the  laws  of  North  Carolina.  Mr.  Martin  contends  that  these  ballots  should  be 
•counted  for  him.  * 

Section  18,  chapter  li^u,  of  the  Laws  of  North  Carolina,  1877,  provides: 

'•  *  *  The  ballots  shall  be  on  white  paper  and  may  be  printed  or  written,  or 
partly  written  and  partly  printed,  and  .shall  be  without  device. 

*'Sec.  20.  When  the  election  shall  be  finished  the  registrars  and  judges  of  election, 
In  presence  of  such  of  the  electors  as  may  choose  to  attend,  shall  open  the  boxes  and 
count  the  ballots,  reading  aloud  the  uames  of  the  persons  who  shall  appear  on  each 
:ticket ;  and  if  there  shall  be  two  or  more  tickets  rolled  up  together,  or  auy  ticket  shall 
contain  the  names  of  more  persons  than  such  elector  has  a  right  to  vote  for,  or  snail 
have  a  device  upon  it,  in  either  of  these  cases  such  tickets  shall  not  be  numbered  in  tak- 
ing the  ballots,  but  shall  be  void,  and  the  said  counting  of  votes  shall  be  continued 
Tvithbut  adjournment  until  completed  and  the  result  thereof  declared." 

If  these  words  constitute  a  device  within  the  meaning  of  the  law,  the  statute  is  plain 
vthat  the  ballots  are  void  and  are  not  to  be  counted.  The  counsel  for  the  contestee, 
while  denying  that  these  words  constitute  a  device,  contends  also  that  being  on  the 

inside  of  the  ticket  the  case  is  within  the  decision  of  D vs.  The  State  (29  Indiana, 

308),  and  Napier  vs.  Mahew  (:i5  Indiana,  275).  See  McCrary,  section  404  ;  Neft'  r«. 
Shanks  (Forty-third  Congress). 

The  statutes  of  Indiana  provide  : 

"  Skc.  18.  When  any  person  oliei-s  to  vote  the  inspector  shall  pronounce  his  name 
in  an  audible  voice,  and  if  there  be  no  objection  he  shall  receive  his  ballot,  and  in  the 
presence  of  the  other  judges  put  the  same  unopened  into  the  ballot-box,  when  the 
name  of  such  elector  shall  be  again  distinctly  repeated  by  one  of  the  other  judges  in 
the  presence  of  the  clerks. 

''Sec.  23.  That  all  ballots  which  may  be  cast  at  anj'  election  hereafter  held  in  this 
.■State  shall  be  written  or  printed  on  plain  white  paper,  without  any  distiuguishing 
marks  or  other  embellishment  thereon,  except  the  name  of  the  candidates  and  the 
•office  for  which  they  are  voted  for,  and  inspectors  of  elections  shall  refuse  all  ballot* 
•oflFered  of  any  other  description:  I'roviaed,  Nothiug  herein  shall  disqualify  the  voter 
from  writing  his  own  name  on  the  back  thereof." 

The  Indiana  statute  requires  the  in.spector  to  put  the  ballot  into  the  ballot-box  un- 
opened, and  that  the  ballots  shall  be  without  any  distinguishing  marks  or  other  em- 
I>elliflbment  thereon,  and  that  the  inspectors  of  election  shall  refuse  all  ballots  offered 
•of  any  other  description.  Under  this  statute  the  Indiana  court  held  that  the  words 
"City  union  ticket"  on  the  inside  of  the  ballot,  even  if  it  be  conceded  that  these 
words  constitute  a  distinguishing  mark,  did  not  i-ender  the  ballot  void,  and  that  the 
•object  of  the  act  was  accomplished  by  requiring  all  ballots  to  be  uniform  in  external 
£ippearance.  The  same  question  was  decided  in  Stanley  r«.  Mauley  (35  Indiana,  275), 
whese  the  words  were  "Republican  ticket"  on  the  inside  ot  the  ballot.     Under  the 


YEATES    VS.    MARTIN.  .  383 

Indiaua  statute  the  court  say  that  the  statute  "  does  not  authorize  the  inspectors  antl 
judges  to  reject  a  ballot  upon  the  discovery  of  such  a  mark  or  embellishment  at  the 
time  of  couuting  out  the  ballots  which  could  not  be  seeu  by  the  inspectors  at  the  time 
it  was  voted."  The  North  Carolina  statute  is  express  that  the  ballots  shall  be  with- 
out device,  and  that  if  the  ticket  shall  have  a  device  upon  it,  it  shall  not  be  numbered 
in  taking  the  ballots,  but  shall  be  void.  This  difference  in  the  statutes  renders  the 
Indiana  decisions  inapplicable,  and  the  sole  question  is,  are  the  words  "Kepublicaa 
ticket"  on  the  inside  of  a  ballot  a  device  within  the  meaning  of  the  North  Carolina 
statute.  With  the  policy  of  the  statute  we  have  nothing  to  do  ;  one  purpose  of  the 
statute  may  have  been  to  prevent  bystanders  from  knowing  from  observation  how  the 
voters  voted.  No  statute  can  altogether  prevent  this;  experts  can  easily  distinguish 
between  different  kinds  of  white  papers,  and  the  printing  of  the  ballots  of  the  oppo- 
site parties  wonld  ordinarily  be  done  at  different  printing  offices  with  different  type 
and  ink,  and  the  arr.angemeut  of  the  names  of  the  persons  and  of  the  office,  the  punc- 
tuation, and  the  place  on  the  ticket  of  the  printed  matter  would  ordinarily  be  differ- 
ent and  apparent  to  a  well-trained  eye.  The  intention  of  the  statute  could  be  easily 
evaded  if  it  did  not  also  jtrescribe  the  size  of  the  ticket  and  the  size  of  the  type,  whicb 
the  North  Carolina  statute  has  not  done.  Still  the  statute,  such  as  it  is,  inust  be  en- 
force<l,  even  if  some  provisions  have  been  omitted  that  are  necessary  completely  to 
appreciate  its  iutention. 

Another  purpose  of  the  statute  may  have  been  to  compel,  as  far  as  is  possible,  th& 
voter  to  select  the  persons  he  votes  for  independently  of  any  contrivances  on  the 
ticket  calculated  to  inform  or  misiuform  him  of  the  opinions  of  the  persons  voted  for^ 
because  devices  are  often  contrived  to  mislead.  Either  way,  we  think  that  words- 
prominently  printed  on  a  ticket  and  intended  to  designate  or  describe  it,  and  whicb 
have  a  distinct  meaning  in  themselves,  such  as,  if  untrue,  might  mislead  the  voter^ 
and  whether  true  or  untrue  would  render  the  ticket  easily  distinguishable,  must  be 
held  to  be  a  device  within  the  meaning  of  the  law.  (McCrary  on  Elections,  section 
401.)     These  votes  were  rejected  by  the  State  authorities,  and  we  think  rightfully. 

The  committee  cannot  sustain  the  claim  that  is  made  by  the  con- 
testee,  that  164  votes  should  be  counted  for  him  at  the  Goose  Nest 
precinct,  which  were  rejected  by  the  managers  of  the  election  there, 
rt  is  not  denied  by  the  contestee  that  all  who  were  denied  the  right  of 
voting  at  this  precinct  were  registered  in  Hamilton  precinct,  which  was 
another  precinct  in  the  same  county.  The  law  of  North  Carolina  re- 
quires that  a  voter  who  is  registered  in  one  precinct  cannot  vote  at 
another  without  producing  a  certificate  of  the  erasure  of  his  name 
from  the  registration  list  of  the  precinct  where  he  is  registered.  The 
reason  for  this  rule  is  obvious.  If  voters  are  registered  in  two  or  more 
precincts  in  the  same  county,  the  entire  object  of  the  registration  law 
is  avoided,  for  they  might  vote  in  every  precinct  where  they  are  regis- 
tered. 

Where  a  voter  admittedly  registered  at  Hamilton  precinct  presents 
himself  at  Goose  Nest  precinct  for  the  purpose  of  voting,  he  cannot 
vote,  unless  there  is  this  required  evidence  of  honest  registration.  That 
this  construction  was  placed  upon  the  law  of  North  Carolina  by  all  of 
those  who  were  careful  enough  to  guard  their  rights  is  evidenced  by  the 
fact  that  there  were  52  votes  cast  for  the  contestee  at  this  precinct  who 
produced  the  certificates  of  erasure  under  the  statute.  Proclamation 
was  made  at  a  public  meeting  of  the  political  parties  on  the  day  pre- 
vious to  the  election  that  it  was  necessary  to  procure  these  certificates; 
that  all  who  applied  in  person  or  by  proxy,  whether  Democrats  or  Re- 
publicans, received  the  certificates.  Every  man  who  voted  at  Goose 
Nest  precinct  was  registered,  and  produced  the  requisite  certificate  of 
erasure  of  his  name  from  Hamilton  precinct.  A  full  board  of  inspectors^ 
Democrats  and  Eepublicans,  determined  before  the  election  that  these 
certificates  were  essential.  The  full  board  of  election  judges.  Democrats 
and  Republicans,  were  agreed  to  reject  these  votes.  Before,  however^ 
the  committee  can  set  aside  the  action  of  the  authorities  of  the  State 
of  North  Carolina,  they  must  have  submitted  to  them  better  evidence 


390  DIGEST    OF    ELECTION    CASES. 

than  tliat  which  the  contestee  has  offered  that  154  votes  were  rejected 
at  that  precinct. 

It  was  incumbent  on  the  contestee  to  support  this  claim  by  the  best  evi- 
dence of  which  the  nature  of  the  case  would  admit.  So  far  from  this 
being  true,  the  contestee  has  offered  testimony  of  one  William  A.  John- 
son, a  bystander,  who  says  that  he  personally  saw  160  ballots  that  were 
oflfered  for  J.  J.  Martin,  and  which  were  rejected  bj'  the  judges  of  elec- 
tion, and  six  of  whom  were  afterwards  permitted  to  vote.  Not  one  of 
these  154  votes  was  called,  although  they  were  all  residents  of  that 
precinct.  The  witness,  W.  A.  Johnson,  tells  a  very  incredible  story, 
and  it  is  but  reasonable  that  had  554  voters  been  refused  the  right 
of  voting  at  that  precinct,  the  contestee  would  have  offered  evidence 
sufficient  to  satisfy  the  committee  of  the  fact;  but  the  committee  will 
not  interfere  with  the  construction  of  the  laws  of  North  Carolina  as  ap- 
plicable to  this  precinct,  and  therefore  decline  to  accede  to  the  dem?nd 
of  the  contestee  and  count  154  votes  for  him.  None  of  these  voters  are 
identified  by  evidence  sufficient. 

From  the  foregoing  conclusions  we  have  the  following  result: 

The  returned  vote  for  Mr.  Martin,  the  contestee,  was 12, 135 

From  which  deduct  his  majority  in  South  Mills <)4 

In  Hamilton 64 

In  Vandemere 40 

168 

Leaving  his  true  vote 11, 967 

The  returned  vote  for  Mr.  Yeates,  the  contestant,  was 12,  084 

To  which  should  be  added  his  majority  in  Providence  Township 39 

Making  his  true  vote  in  the  district 12, 133 

From  which  deduct  the  true  vote  of  Mr.  Martin 11,967 

Which  shows  majority  for  Mr.  Yeates 156 

The  conclusion  of  the  committee,  therefore,  is  embodied  in  the  follow- 
ing resolutions : 

Resolved,  That  Joseph  J.  Martin  was  not  elected,  and  is  not  entitled 
to  a  seat  in  this  House  as  a  member  of  the  Forty  sixth  Congress,  from 
the  first  Congressional  district  of  North  Carolina. 

Resolved,  That  Jesse  J.  Yeates  was  elected,  and  is  entitled  to  a  seat 
in  this  House  as  a  member  of  the  Forty-sixth  Congress,  from  the  first 
Congressional  district  of  North  Carolina. 

EMORY  SPEER. 

F.  E.  BELTZHOOVfiR. 

E.  C.  PHISTER. 

VAN  H.  MANNING. 

WILLIAM  M.  SPRINGER. 

We  concur  in  the  result  declared  in  the  above  report,  but  do  not  think 
that  the  vote  of  Hamilton  precinct  should  be  excluded. 

W.  G.  COLERICK. 
SAM'L  L.  SAWYER. 


YEATES    VS.    MARTIN. 
VIEWS    OF    THE    il  l  S  0  B I  T  Y . 


391 


Mr.  Field,  from  the  committee,  presents  the  views  of  the  minority  in 

this  case,  as  follows : 

The  contest  in  this  case  arises  out  of  an  election  held  on  the  5th  day 
of  November,  1878,  for  a  Representative  in  Congress  from  the  first  Con- 
gressional district  of  North  Carolina. 

The  abstract  of  votes  cast  at  this  election,  duly  certified  from  the 
oflSce  of  secretary  of  state,  and  found  on  page  41  (Record)  is  as  follows : 

Abstract  of  votes  cast  at  an  election  held  for  members  of  the  Forty-sixth  Congress  of  the  United 
Stales  on  Tuesday,  November  5,  1878,  in  the  State  of  North  Carolina. 

FOR  CONG RKSS— FIRST  DISTRICT. 


■ 
Begistration. 

1 

Hi 

4 

Counties. 

i 

1 

an 
-"I 

1 

m 

1,397 

988 
567 
601 
635 
112 
751 
905 
554 

1,275 
423 
423 
706 

1,935 
332 
480 

1.1M 

1,499 
417 
797 
289 
131 
449 

1,029 
406 

1,166 
332 
749 
864 

1,806 
240 
832 

178 

1 

8 

1 

::::::!:::::: 

1 

Dare 

1 

Gates 

i 

flertfoni 

...:..i 

Hyde 

1 

Im 

1 

51 

2 

.1...... 

Pitt 

R 

Tyrrell 

1 

2 

i 

61 

Total 

12,084 

12,135 

430 

A  general  election  for  State  officers  had  been  held  in  August  preced- 
ing this  election  in  November,  and  the  November  election  was  for  Rep- 
resentatives in  Congress  only. 

The  contestant  attacks  the  election  held  at  South  Mills  precinct,  in 
Camden  County ;  at  Vaudemere  precinct,  in  Pamlico  County,  and  Ham- 
ilton precinct,  in  Martin  County,  and  the  action  of  the  cauvassing-board 
of  Pasquotank  in  refusing  to  count  the  votes  of  Providence  Township, 
in  Pasquotank  County. 

Whatever  larger  claim  the  contestant  made  in  his  notice  of  contest, 
bis  proofs  have  been  con  lined  to  these  precincts  and  township,  and  to 
rebutting  the  claims  made  on  the  part  of  the  cont-estee  that  additional 
votes  should  be  counted  for  the  coutestee  at  Merry  Hills  precinct,  in 
Bertie  County ;  at  Salem  precinct,  in  Pasquotank  County,  and  at  Goose 
Nest  precinct,  in  Martin  County. 

SOUTH  MILLS  PRECINCT. 

At  this  precinct  the  contestee  received  a  majority  of  64  votes.  The 
■contestant  objects  to  counting  these  votes  for  several  reasons,  which 
will  be  considered  in  their  order. 


392  DIGEST  OF  ELECTION  CASES. 

The  first  reason  alleged  is  that  the  polls  were  not  opened  as  early  in 
the  momiug  as  the  statutes  of  North  Carolina  require. 

Section  16  of  chapter  275  of  the  act  of  North  Carolina  of  1877  pro- 
vides that  "  the  polls  shall  be  opened  on  the  day  of  election  from  7 
o'clock  in  the  morning  until  sunset  of  the  same  day,  and  no  longer." 

Sawyer, the  sheriff", page  30, swears  that  the  polls  were  opened  "about 
9  o'clock,  and  might  have  been  more,  but  1  cannot  say." 

Barrington,  page  31,  swears  :  "  \Yhen  I  left  here  after  coming  the 
second  time,  I  think  it  was  then  between  9  and  10  o'clock,  and  the  polls 
were  not  then  opened." 

Spence,  page  34:  "My  idea  is  that  it  was  as  late  as  10  o'clock'^ 
when  the  polls  were  opened. 

Gregory,  page  35:  "The  sun  was  at  least  an  hour  high"  when  the 
polls  were  opened. 

Spence,  page  36,  acted  in  the  capacity  of  registrar,  and  swears  that 
"it  was  somewhere  about  15  minutes  after  9  o'clock"  when  the  polls 
were  opened. 

It  may  be  assumed  that  it  was  between  9  and  10  o'clock  when  the  polls 
were  opened. 

The  reason  of  the  delay  in  the  opening  of  the  polls  is  by  different  wit- 
nesses stated  as  follows : 

John  E.  Spence,  registrar,  page  37  :  "  There  were  three  reasons  why 
they,"  that  is,  the  polls,  "were  not  opened  earlier:  first,  the  inspectors 
were  not  all  present;  second,  there  was  no  one  present  to  qualify  them; 
third,  we  had  no  house  in  which  to  hold  the  election." 

Section  9,  chapter  275,  acts  of  North  Carolina,  1877,  is : 

The  board  of  justices  of  the  peace  for  each  county,  on  or  before  the  first  Monday  of 
the  month  next  prec«?ding  the  month  in  which  each  election  is  heUI,  shall  appoint  four 
jodges  or  inspectors  of  elections,  two  of  whom  shall  be  of  a  ditterent  political  party, 
"when  possible,  from  the  registrars,  at  each  place  of  holding  election  iu  their  respect- 
ive counties.  The  said  judges  of  election  shall  attend  to  the  places  for  which  they 
are  severally  appointed,  on  the  day  of  election,  and  they,  together  with  the  regis- 
trars for  such  precincts  or  townships,  who  shall  attend  with  the  registration  books, 
aft«r  being  sworn  by  some  justice  of  the  peace,  or  other  person  authorized  to  admin- 
ister oaths,  to  conduct  the  election  fairly  and  impartially  according  to  the  constitu- 
tion and  laws  of  the  State,  shall  open  the  polls  and  superintend  the  same  until  the 
close  of  the  election.     *    *     * 

Sec.  5.  The  board  of  justices  of  the  peace  of  the  several  counties  shall  select,  on  or 
before  the  first  Monday  of  the  mouth  preceding  each  election,  one  or  more  persons  for 
each  election  pi-ecinct,  who  shall  act  as  registrars  of  voters  for  such  precinct.  *  *  * 
If  any  registrar  shall  refuse  or  neglect  to  perform  his  duties,  the  justices  of  the  peace 
for  the  township  may  remove  him  and  appoint  another  in  his  place.      •     *     ♦ 

Under  the  division  entitled  "Congressional  elections,"  of  said  chapter  275, section 
49,  is  the  following:  "  The  electioD,"  that  is,  the  election  for  a  Representative  in  Con- 
gress, "shall  be  held  at  the  same  times  and  places  as  are  prescribed  for  holding  elec- 
tions for  members  of  the  general  assembly,  on  the  Tuesday  next  after  the  first  Mon- 
day in  November  preceding  the  termination  of  each  Congress,  and  shall  be  conducted 
by  the  sheriffs  or  l»y  other  persons  appointed  therefor  in  like  manner  a«  elections  for 
members  of  the  general  assembly." 

The  registrar,  John  E.  Spence,  was  a  democrat  (page  35).  The  legu- 
larly  appointed  inspectors  were  Joseph  N.  Spence,  Wiley  N.  Gregory, 
Evan  Overton,  and  James  H.  Sawyer;  of  these  only  Spence  and  Over- 
ton were  present  (page  36).  Gregory,  a  voter  at  South  Mills  precinct, 
and  a  Democrat,  who  was  present  at  the  election  and  voted,  declined 
to  serve  as  in8i)ector  (page  35).  The  registrar  also  appointed  John  T. 
Pritchard  one  of  the  inspectors,  who  served  for  a  short  time,  when  Ken- 
neth R.  Sawyer  took  his  place.  Sawyer  was  not  appointed,  but  it  may 
fairly  be  inferred  that  he  acted  with  the  assent  of  the  registrar  (pages 
36,  37).  The  registrar  requested  several  others  to  fill  the  vacancy  and 
they  refused  (page  37).    The  election  was  conducted  by  these  three  in- 


\'EATES    VS.    MARTIN.  393 

spectors  (page  36).    To  two  at  least  of  these  three  inspectors  the  oath 
was  administered  by  the  sherifl",  who  swears  that  he  qualified  these  in- 
spectors (page  30).     The  registrar  was  not  sworn  (page  36). 
Section  9,  chai)ter  275,  acts  of  1875,  provides  : 

*  "  *  If  for  any  cause  auy  person  appointed  judge  of  election  aball  fail  to  attend, 
the  registrars  of  such  township  shall  appoint  some  discreet  person  to  act  as  feuch,  who 
shall  be  of  the  same  political  party  as  the  absent  judge  or  judges. 

The  testimony  of  the  sheriff,  registrar,  and  of  other  witnesses  to  these 
facts  is  as  follows  : 

Deposition  of  M.  N.  Sawyer. 

M.  N.  Sawykk,  being  duly  sworn,  depoeeth  and  saith  as  follows: 

Question.  What  is  your  age  and  occupation  T — Answer.  I  am  thirty-two  years  of 
age,  and  am  sheriff  of  Camden  County. 

Q.  Were  yon  present  at  the  election  held  for  a  member  to  represent  the  first  Coh- 
gressional  district  of  North  Carolina  to  the  Forty-sixth  Congress  of  the  United  States, 
held  at  South  Mills,  Camden  County,  North  Carolina,  on  the  5th  dav  of  November, 
1878  ?— A.  I  was. 

Q.  About  what  time  do  you  think  the  polls  were  opened  ? — A.  About  9  o'clock, 
and  might  have  been  more,  but  I  cannot  say. 

Q.  Did  you  administer  the  oath  to  inspectors  of  the  polls  in  South  Mills  Town- 
ship on  said  dayt — A.  I  did  to  those  who  were  present,  but  I  left  the  polls  ai 
about  11  o'clock,  and  up  to  that  time  there  were  but  two  of  the  regularly  appointed 
inspectors,  besides  the  registrar,  at  the  polls. 

Q.  Do  you  know  whether  any  of  the  inspectors  were  qualified  by  the  registrar  «f 
this  township  to  hold  said  election  or  not? — A.  I  do  not. 

Cross-examined  by  C.  H.  Spencer,  attorney  for  Joseph  J.  Martin,  contestee : 

Q.  In  what  capacity  did  you  administer  the  oath  to  the  inspectors  of  the  polls  T — A. 
As  sheriff. 

Q'.  Were  you  requested  to  do  so  by  the  inspectors  of  the  election? — A.  I  was  by 
some  one,  but  by  whom  I  do  not  now  remember. 

Q.  How  many  inspectors  did  you  qualify  f — A.  Tliree. 

Q.  Do  yon  know  the  inspectors  who  were  appointed  by  the  board  of  justices  to  hold 
said  election,  and,  if  so,  state  what  you  know  of  their  politics? — A.  I  do;  two  were 
Democrats  an«l  two  were  Republicans. 

Q.  Whicli  were  present  at  the  opening  of  the  polls  ? — A.  One  Democrat  and  one 
Republican. 

Q.  Do  you  know  of  any  reason  why  the  polls  were  not  opened  at  the  proper  hoar  t — 
A.  I  do  not. 

Q.  Wjis  the  registrar  present  when  you  arrived ;  and,  if  so,  state  what  you  know 
of  his  politics  ? — A.  He  was,  and  he  is  a  Democrat. 

M.  N.  SAWYER. 

Deposition  of  Cary  G.  Spence. 

Cary  G.  Spenck,  being  duly  sworn,  deposeth  and  saith  as  follows: 

Question.  Are  you  a  legal  voter  in  South  Mills  Township  ? — Answer.  I  am,  and 
have  been  for  about  thirty-six  years. 

Q.  Were  you  at  the  polls,  and  did  you  vote  at  the  election  held  at  South  Mills  on 
the  5th  day  of  September,  1878,  for  a  member  to  the  Forty-sixth  Congress  of  the 
United  States  ? — A.  I  was  at  the  polls  and  voted. 

Q.  About  what  hour  of  the  day  were  the  polls  opened? — A.  My  idea  is  that  it  wa» 
as  late  as  10  o'clock. 

Q.  Do  you  know  who  were  conducting  the  election  when  you  voted  ? — A.  I  know 
that  Evan  Overton  and  Kenneth  R.  Sawyer,  and  one  other,  whose  name  I  do  not  re- 
member, were  conducting  the  election;  the  registrar  was  also  present  when  I  voted. 
Kenneth  R.  Sawyer  was  called  in  while  I  was  near  the  polls  and  took  his  seat  as  one 
of  the  judges. 

Q.  Did  you  or  did  you  not  see  said  Sawyer  qualified  or  sworn  in  as  one  of  the  in- 
spectors of  tlie  polls? — A.  I  did  not  see  him  sworn  in. 

Q.  Were  you  where  you  could  have  seen  him  if  he  had  been  sworn  in  ? — A.  I  was 

E resent  at  the  polls  before  said  Sawyer  took  his  seat  as  inspector,  and  saw  him  when 
e  took  bis  seat,  and  saw  no  one  administer  the  oath  to  him. 


394  DIGEST    OF    ELECTION    CASES. 

Cross-examined  by  attorney  for  Joseph  J.  Martin,  contestoe: 

Q.  How  old  are  you  ? — A.  I  am  fifty-tteven  years  old. 

Q.  How  many  inspectors  were  conducting  the  election  when  you  voted  ? — A.  Three 
besides  the  registrar. 

Q.  Do  you  know  that  Kenneth  R.  Sawyer  was  not  duly  sworn  as  an  inspector  ? — A. 
I  do  not  know  it. 

Q.  About  what  time  of  the  day  did  you  vote  ? — A.  I  think  it  was  about  10  o'clock. 

Q.  Had  others  voted  before  you  ? — A.  Two  or  three. 
■     Q.  Do  you  know  any  reason  why  the  polls  were  not  opened  sooner? — A.   Because 
■all  of  the  inspectors  were  not  present. 

C.  a.  SPENCE. 

Deposition  of  Wiley  I^.  Gregory. 

Wiley  N.  Gregory,  being  duly  sworn,  deposeth  and  saith  as  follows : 

Question.  Were  you  a  qualified  voter  at  South  Mills  precinct  on  the  Tith  day  of  No- 
vember, 1878  ? — Answer.  I  was. 

Q.  Were  you  appointed  one  of  the  inspectors  of  the  polls  to  hold  said  election,  by 
the  board  of  magistrates  of  Camden  County,  for  a  member  to  the  Forty-sixth  Congress 
■of  the  United  States  from  the  first  Congressional  district  of  North  Carolina? — A.  I 
was,  but  did  not  serve. 

Q.  Do  you  know  about  what  hoar  the  polls  were  opened  ? — A.  The  sun  was  at  least 
An  hour  high. 

Q.  Did  yon  vote ;  and,  if  so,  who  was  conducting  the  election  when  yoti  voted  ? — 
Ai.  I  voted,  and  at  that  time  those  conducting  the  election  were  Evan  Overton  and 
Kenneth  R.  Sawyer,  who  was  placed  there  in  my  stead,  and  I  am  not  certain  whether 
any  one  else  was  there  or  not,  except  the  registrar. 

Cross-examined  by  attorney  for  Joseph  J.  Martin,  coutestee  : 

Q.  Who  were  the  other  inspectors  appointed  with  you  to  hold  said  election,  and 
what  was  their  politics?— A.  I  think  Joseph  N.  Spence  and  Evan  Overton  were  ap- 
pointed with  me,  bnt  I  am  not  certain.  Myself  and  Joseph  N.  Spence,  if  appointed, 
who  I  think  was,  but  am  not  certain,  were  Democrats,  and  Evan  Overton  was  a  Re- 
publican. 

Q.  Who  was  the  registrar  at  said  election,  and  what  was  his  politics  ? — A.  John  E. 
Spence  was  registrar,  and  he  is  a  Democrat. 

Q.  Where  were  you  and  the  registrar  residing  at  that  time  * — A.  In  the  village  at 
South  Mills,  where  the  election  was  held. 

Q.  Do  you  think  the  sun  was  more  than  an  hour  high? — A.  I  think  it  was  at  least 
an  hour  high,  but  cannot  be  definite ;  if  anything,  it  might  have  been  some  later. 

Q.  Do  you  know  of  any  reason  why  the  polls  were  not  opened  earlier  ?— A.  I  do 
not. 

Q.  How  many  inspectors  were  conducting  the  election  when  you  voted  ? — A.  I  am 
certain  there  were  three. 

Direct  examination  by  contestant's  attorney: 
Q.  Do  you  know  how  many  election  precincts  there  are  in  South  Mills  Township  ? — 
A.  There  is  only  one,  and  that  one  is  held  in  the  village  of  South  Mills. 

Q.  Do  you  know  how  many  acting  justices  of  the  peace  there  were  in  and  for  South 
Mills  Township  on  the  rth  dny  of  November,  1878,  and  what  were  their  names? — A. 
There  were  three ;  Benjamin  F.  Spence,  John  C.  Tatoni,  and  Peter  C.  Pearce. 

WILEY  N.  GREGORY. 

Deposition  of  John  E.  Spence. 

John  E.  Spence,  being  duly  sworn,  deposeth  and  saith  as  follows : 

Question.  What  is  your  ago  and  occupation  ? — Answer.  I  am  thirty  years  of  age, 
and  am  a  merchant. 

Q.  Were  you  at  the  election  precinct  at  South  Mills,  Camden  County,  North  Caro- 
lina, on  the  5th  day  of  November,  1878,  when  an  election  was  held  for  a  Representar 
tive  in  the  Forty-sixth  Congress  of  the  United  States  for  the  first  Congressional  dis- 
trict of  North  Carolina  ;  and,  if  so,  in  what  character  were  you  there  ? — A.  I  was,  and 
acted  in  the  capacity  of  registrar. 

Q.  Do  you  know  at  what  hour  the  polls  wore  opened  at  said  election  ? — A.  It  was 
somewhere  about  15  minutes  after  9  o'clock. 

Q.  Do  you  know  who  was  appointed  judges  or  inspectors  of  the  polls  at  said  pre- 
cinct by  the  board  of  justices  for  said  county  ;  and,  if  so,  who  of  them  were  present 
and  were  qualified  at  the  opening  of  said  polls  ? — A.  I  was  told  by  the  sheriff  that 


YEATES    VS.    MARTIN.  S^5 

Joseph  N.  Speuce,  Wiley  N.  Gregory,  Evan  Overtou,  and  James  H.  Sawyer,  were  ap- 
pointed inspectors  to  conduct  said  election.  Of  these,  Joseph  N.  Speace  and  Evaa 
Overton  were  only  present. 

Q.  Who  qualified  these  inspectors  * — A.  M.  N.  Sawyer. 

Q.  Was  any  one  appointed  as  juilge  or  inspector  to  assist  in  condacting  the  elec- 
tion ? — A.  Yes  ;  I  appointed  John  T.  Pritchard. 

Q.  Was  the  oath  required  to  he  administered  to  inspectors  of  the  polls  adnainist^red 
t-o  him  hy  you  ? — A.  It  was  not. 

Q.  Did  you  appoint  any  one  else  as  inspector  during  the  day  T — A.   I  did  not. 

Q.  Were  you,  as  registrar,  together  with  those  inspectore  who  were  present  at  the 
opening  of  the  polls,  sworn,  as  required  by  law,  by  any  one  authorized  to  administer 
oaths  ?— A.  I  was  not  sworn  at  any  time  nor  by  any  one  as  registrar. 

Q.  Were  there  four  inspectors  present  through  the  day  conducting  the  election  T — 
A.  There  were  not  but  three  inspectors  conducting  the  election  during  the  day. 

Q.  After  the  polls  were  opened,  was  the  voting  suspended  at  any  time  during  the 
<lay  ? — A.  Yes ;  the  inspectors  adjourned  at  12  o'clock  for  about  one  hour,  for  dinner. 

Q.  What  became  of  the  box  that  contained  the  ballots  during  that  time? — A.  One 
of  the  inspectors  who  received  the  ballots,  to  wit,  Evan  Overton,  took  the  box  con- 
taining the  ballots  to  a  room  about  seventy-five  yards  distant  from  the  polls,  and 
locked  it  in  and  took  possession  of  the  key. 

Owing  to  the  late  hour  of  the  day,  and  by  consent  of  attorneys  for  plaintiff  and  de. 
fendant,  the  taking  of  further  testimonv  in  this  matter  closed  until  9  o'clock  Friday 
the  26th  day  of  September,  1879.  "  ' 

Pursuant  to  adjournment,  the  commission  reassembled  this  the  26th  day  of  Sep- 
tember, 1879,  and  the  testimony  of  John  E.  Spence  resumed. 

Question.  At  what  hour  did  the  inspectors  or  judges  again  open  the  polls? — An- 
swer. About  1  o'clock  p.  m. 

Q.  Who  carried  the  box  containing  the  ballots  back  to  the  place  of  voting? — A. 
Evan  Overton,  in  company  with  myself  and  Kenneth  R.  Sawyer. 

Q.  After  reassembling  who  conducted  the  polls  as  inspectors? — A.  Evan  Overton, 
Joseph  N.  Spence,  and  Kenneth  R.  Sawyer. 

Q.  By  whom  was  Kenneth  R.  Sawyer  appointed  as  an  inspector  f — A.  By  no  one  ;. 
he  took  the  place  of  John  T.  Pritchard. 

Q.  Was  Kenneth  R.  Sawyer  sworn  in  as  an  inspector  ? — A.  Notof  my  knowledge  he 
was  not. 

Q.  Did  Kenneth  R.  Sawyer  continue  to  act  as  an  inspector  until  the  polls  were 
closed  ? — A.  My  impression  is  that  he  did. 

Q.  At  what  hour  of  the  day  were  these  polls  closed  f — A.  At  sunset. 

Q.  Was  the  box  opened  and  the  votes  counted  out  immediately  upon  the  termina- 
tion of  the  voting* — A.  It  was. 

Q.  Did  you  complete  the  counting  of  the  votes,  and  were  the  certificates  of  the  re- 
sult of  the  votes  made  out  and  signed  on  the  .'ith  day  of  November,  1878  f — A.  Yes. 

Q.  Who  signed  said  certificates  ? — A.  Myself,  Joseph  N.  Spence,  and  Evan  Overton 
signed  them  ;  I  do  not  know  whether  any  one  else  signed  them  or  not. 

Q.  What  then  became  of  the  certificates  of  said  returns  f — A.  They  were  placed  in, 
the  hands  of  Joseph  N.  Spence,  whom  we  selected  as  one  of  the  county  canvassers. 

Q.  Whom  do  you  mean  when  you  say  ice  f — A.  Myself  and  those  of  the  inspector* 
who  were  present. 

Q.  Was  the  said  Kenneth  R.  Sawyer  present  and  did  he  aid  in  making  the  selection 
of  Joseph  N.  Spence  as  the  bearer  of  said  certificates  and  a  member  of  the  board  of 
county  canvassers? — A.  He  wsis  present,  and  it  is  my  impression  that  he  sanctioned 
the  selection. 

Cross-examined  l)y  attorney  for  Joseph  J.  Martin,  contestee  : 

Q.  What  was  the  law  tinder  which  this  election  was  held  in  regard  to  the  appoint- 
ment of  inspectors  ? — A.  There  should  be  four  inspectors  appointed,  twoof  whom  shall 
be  members  of  a  different  political  party  from  the  registrar. 

Q.  What  provision  does  the  statute  make  in  cases  where  any  of  the  inspectors  ap- 
pointed fail  to  act  ? — A.  The  registrar  is  authorized  to  appoint  others  in  their  stead. 

Q.  What  was  the  politics  of  the  registrar  for  that  election  ? — A.  He  was  a  Demo- 
crat. 

Q.  Did  any  of  the  managers  appointed  to  conduct  said  election  reside  at  or  near 
the  voting  precincts  ? — A.  The  registrar  and  Wiley  N.  Gregory,  one  of  the  appointed 
inspectors,  resided  at  the  precinct. 

Q.  What  was  the  politics  of  Wiley  N.  Gregory! — A.  He  was  a  Democrat. 

Q.  What  reason,  if  any.  can  you  .assign  why  the  polls  were  not  opened  earlier  f — A. 
There  were  three  reasons  why  they  were  not  opened  earlier:  First,  the  inspectors 
were  not  all  present;  second,  there  was  no  one  present  to  qualify  them  ;  third,  we 
had  no  house  in  which  to  hold  the  election. 


396  DIGEST    OF    ELECTION    CASES. 

Q.  Whose  place  was  John  T.  Pritchard  appointed  to  till  ? — A.  He  was  appointed  t-o 
fill  one  of  the  vacancies. 

Q.  Why  did  not  you,  as  registrar,  supply  the  other  vacancy  by  appointment  ? — A. 
I  requested  several  to  till  the  vacancy  and  they  refused. 

Q.  About  what  is  the  usual  vote  cast  at  South  Mills  precinct  ? — A.  Between  45(f 
and  500. 

Q.  Do  you  thiuk  that  any  who  desired  to  vote  at  that  election  were  deprived  of 
doing  so  by  reason  of  a  want  of  time  or  opportunity  d\iring  which  the  polls  were 
opened  ? — A.  I  do  not. 

Q.  Has  it  not  always  been  customary  here  to  adjourn  the  voting  at  noon  for  din- 
ner T 

(Question  objected  to  by  contestant's  counsel.) 

A.  Sometimes  they  adjourn  for  dinner  and  sometimes  they  do  not. 

Q.  What  was  the  room  used  for  in  which  the  ballot-box  was  dejtosited  during  the 
adjournment  for  dinner  ? — A.  It  was  an  unoccupied  room  in  my  residence. 

Q.  Do  yon  believe  that  the  ballot-box  was  safe  from  interference  during  the  ad- 
journment for  dinner  ? — A.  I  do. 

(The  above  question  objected  to  bv  contestant's  counsel.) 

JOHN  E.  SPENCE. 

Deposition  of  John  T.  Pritchard. 

John  T.  Pritchard,  being  duly  sworn,  deposeth  and  saith  as  follows : 

Question.  What  is  your  age  ? — Answer.  I  am  thirty-four  years  old. 

Q.  What  is  your  occupation  ? — A.  I  am  a  farmer. 

Q.  Are  you  a  resident  of  Camden  County,  North  Carolina? — A.  I  am,  and  have  been 
all  my  life. 

Q.  Were  you  present  at  an  election  held  on  the  5th  day  of  i^^ovember,  1878,  for  a 
member  to  the  Forty-sixth  Congress  of  the  United  States  from  the  first  Congressional 
district  of  North  Carolina  in  South  Mills  township  f — A.  I  was. 

Q.  Who,  as  inspectors  or  judges  at  said  election,  conducted  the  same? — A.  John  E. 
Spence  as  registrar,  and  Evan  Overton  and  Joseph  N.  Spence. 

Q.  Were  you,  or  were  you  not,  appointed  one  of  the  inspectors  of  the  polls  on  said 
day  ? — A.  I  was  not.  I  acted  for  a  short  time  in  registering  a  few  names,  but  was 
not  sworn  in  by  any  one. 

Q.  During  the  short  time  that  you  acted,  was  there  any  one  else  except  those  yon 
have  named  above  assisting  as  judge  or  inspector  of  the  polls? — A.  There  was  not. 

JNO.  T.  PRITCHARD. 

Deposition  of  K.  R.  Sawyer. 

Kenneth  R.  Sawyer,  being  duly  sworn,  deposeth  and  saith  as  follows : 

Question.  What  is  your  age  and  occupation  ? — Answer.  I  am  thirty-six  years  old, 
and  am  a  farmer. 

Q.  Were  you  present  at  an  election  held  at  South  Mills,  on  the  5th  day  of  Novem- 
ber, 1878,  for  a  Representative  to  the  Forty-sixth  Congress  of  the  United  States  for 
the  first  Congressional  district  of  North  Carolina? — A.  I  was. 

Q.  Who,  as  the  judges  or  inspectors,  conducted  said  election  T — A.  John  E.  Spence, 
registrar;  Evan  Overton  and  Joseph  N.  Spence  as  inspectors. 

Q.  Did  you,  at  any  time,  assist  as  inspector  duriug  the  day,  and,  if  so,  under  what 
circnmstances  ? — A.  I  did ;  I  assisted  from  about  10  o'clock  until  about  a  half  an 
hour  by  sun. 

Q.  Were  you  sworn  in  by  any  one  as  the  law  requires  ? — A.  I  was  not. 

Q.  Do  you,  of  your  own  knowledge,  know  whether  any  one  acted  in  your  place 
after  you  ceased  to  act  about  a  half  au  hour  by  sun  ? — A.  I  do  not. 

Q.  Were  you  present  at  the  counting  of  the  votes  ? — A.  I  was  not. 

Q.  During  the  time  you  were  assisting  in  conducting  the  polls  were  there  any  votes 
challenged  ;  and,  if  so,  did  you  aid  in  deciding  the  legality  or  illegality  of  the  same  ? 
— A.  There  were  vot«s  challenged,  and  I  aided  in  the  decision. 

Q.  Was  Evan  Overton,  the  receiver  of  the  votes,  under  the  influence  of  spirituous 
liquors  during  the  day  of  the  election  ? — A.  I  think  he  was. 

Q.  Were  the  polls  closed  at  any  time  while  you  were  acting  in  the  capacity  of  in- 
spector; and,  if  so,  for  what  length  of  time? — A.  They  were  cloted  about  one  hour 
for  dinner. 

Q.  During  that  time  what  became  of  the  box  containing  the  ballots? — A.  It  was 
conveyed  by  Evan  Overton,  in  company  with  myself  and  John  E.  Spence,  to  a  room 
about  seventy-five  yards  distant  from  the  house  where  the  balloting  was  conducted, 
and  locked  up  by  said  Overton,  who  retained  the  key ;  and  after  an  interval  of  about 
one  hour  it  was  taken  back  again  by  said  Overton,  and  the  voting  resumed. 


YEATES    VS.    MARTIN.  397 

Q.  Do  you  know  of  any  voter  or  voters  who  were  restrained  from  voting  as  they 
wished  on  the  day  of  the  election  by  reason  of  an  undue  and  unlawful  influence  t — A. 
I  do  ;  James  Miller  and  Edmond  Sawyer  told  me  on  the  day  after  election  that  they 
came  to  the  polls  to  vote  for  Jease  J.  Yeates,  but  were  influenced  to  vote  for  Joseph  J . 
)(artin  by  insinuating  language  used  by  persons  opposed  to  the  election  of  Jesse  J. 
Yeates.     Of  these,  I  think,  they  named  two,  to  wit,  Calvin  Jones  and  Miles  Knight. 

KENNETH  R.  SAWYER. 

Pritchard.  who  was  appointed  inspector,  it  seems,  served  for  a  short 
time,  when  Kenneth  It.  Sawyer  took  his  place,  who,  according  to  the 
impression  of  the  registrar,  continued  to  act  until  the  polls  were  closed, 
but,  according  to  his  own  testimony,  acted  "from  about  10  o'clock 
until  about  half  un  hour  by  sun,"  which  is  meant  until  half  an  hour 
of  sunset.     Both  IMtchard  and  Sawyer  swear  that  they  were  not  sworn. 

So  far  as  the  failure  to  open  the  polls  seasonably  is  concerned,  the 
fault,  if  there  were  one,  was  that  of  the  Democratic  registrar  in  not 
making  seasonable  provision  for  tilling  vacancies,  and  of  the  Demo- 
ciatic  inspector  who  was  present  and  declined  to  serve;  but  perhaps  no 
one  was  at  fault.  That  contestant  relies  upon  section  142  of  McCrary 
on  Elections  to  the  effect  that  if  the  deviations  from  the  legal  hours  is 
great,  the  presumption  is  that  it  has  aflected  the  result,  and  the  burden 
will  be  upon  him  who  seeks  to  uphold  the  election  to  show  affirmatively 
that  it  has  not;  but  if  the  deviation  is  slight,  then  the  presumption  is 
that  it  has  not  affected  the  result. 

When  polls  are  closed  before  the  hour  prescribed  by  law,  it  may  be 
that  voters,  without  any  fault  of  their  own,  are  excluded  from  voting, 
because  they  have  a  right  to  ex])ect  that  the  polls  will  be  kept  open  ac- 
cording to  law:  but  when  polls  are  not  opened  at  the  hour  required  by 
law,  but  are  opened  in  season  to  give  ample  time  to  any  voter  to  vote, 
and  the  delay  has  arisen  from  the  fact  that  all  the  election  officers  have 
not  attended,  and  some  time  is  necessary  to  fill  these  vacancies  accord- 
ing to  law,  and  there  has  been  no  manifest  abandonment  of  the  attempt 
to  hold  an  election,  it  is  the  duty  of  a  voter  to  wait  until  the  polls  are 
opened.  To  hold  otherwise,  would  invite  a  minority  to  bring  about 
a  delay  in  opening  the  polls,  in  order  to  invalidate  the  election. 
Such  laws  neces.sarily  imply  that  some  time  must  be  taken  on  elec- 
tion day  to  till  such  vacancies,  and  the  voter  has  no  right  under  either 
the  Constitution  and  laws  of  the  United  States  or  of  the  State  to 
tleposit  his  ballot  immediately  on  reaching  the  polling-place,  and  no 
rights  of  his  are  violated  by  compelling  him  to  wait  until  the  polls  are 
0|»ened  in  the  lawful  manner,  provided  there  is  time  enough  left  for  all 
to  vote  who  desire  to  vote.  JSo  case  has  been  shown  to  the  committee 
in  which  a  failure  to  open  the  polls  at  as  early  an  hour  as  the  law  re- 
quires has  been  held  to  affect  the  election  at  such  polling-place.  The 
cases  all  relate  to  closing  the  polls  too  soon.  This  election  at  South 
Mills  ought  not  to  be  declared  void  on  account  of  the  delay  in  opening 
the  polls.  The  only  direct  injury  proved  by  the  delay  in  opening  the 
polls  is :  John  C.  Linton,  pages  30,31,  testifies  that  he  waited  for  the  open- 
ing of  the  polls ;  that  his  business  called  him  away,  and  he  left;  he 
would  have  voted  for  Yeates.  tie  had  heard  of  one  other  person  who 
would  have  voted  for  Yeates  if  the  polls  had  been  seasonably  opened. 
The  last  is  hearsay  which  we  reject.  ^S'e  reject  Linton  because  he 
should  have  waited  if  he  desired  to  vote.  John  E.  Spence,  Democratic 
registrar,  says,  page  37  : 

Q.  Do  you  thiuk  that  any  who  desimd  to  vote  at  that  election  were  deprived  of 
doing  so  by  reason  of  a  want  of  time  or  opportunity  during  which  the  polls  were 
«l>ened  f — A.  I  do  not. 


398  DIGEST   OF   ELECTION    CASES. 

The  contestant  contends  that  the  election  was  not  held  by  the  proper 
officers  and  that  they  were  not  sworn,  and  that  these  defects  invalidate 
the  election  at  tliis  precinct.  The  contestee  objects,  that  this  is  not  open 
to  the  contestant  under  his  notice  and  section  105  of  the  Eevised  Stat- 
utes, which  requires  "  that  the  notice  shall  specify  particularly  the 
grounds  upon  which  the  contestant  relies  in  the  contest,"  and  section 
121,  "that  the  testimony  to  be  taken  by  either  party  to  the  contest  shall 
be  confined  to  the  proof  or  disproof  of  the  facts  alleged  or  denied  in  the 
notice  and  answer,"  &c. 

The  specifications  in  the  notice  of  contest  in  regard  to  South  Mills  is 
this : 

Specification  I. — Thattliepolls  were  not  opened  at  South  Millspiecinct,iu  the  county 
of  Camden,  in  said  district,  on  said  election  day  until  between  the  hours  of  9  o'clock 
a.  in.  and  12  o'clock  m.,  so  that  a  largeuumber  of  persons  desiring  to  vote  at  said  elec- 
tion were  prevenfed  so  doing;  that  a  large  number  of  votes  were  counted  at  said  pre- 
cinct and  returned  at  said  precinct  on  said  day  of  election  in  excess  of  the  number 
bhown  to  have  voted  by  the  poll  and  register  list  kept  by  the  judges  of  election,  to 
wit,  thirty  persons;  that  twenty  persons  voted  for  you  at  said  precinct  on  said  day  of 
election  under  twenty-one  years  of  age,  and  twenty  persons  voted  for  you  non-resi- 
dents. I  object  to  the  votes  of  South  M^ls  precinct  aforesaid  being  counted.  You  are 
reputed  to  have  a  majority  of  over  sixty  votes  at  said  precinct. 

There  is  also  a  general  specification  at  the  end  of  the  notice,  as  fol- 
lows: 

Specification  13. — That  there  were  gross  irregularities,  frauds,  and  violence,  and 
intimidation  of  voters  at  each  and  every  precinct  in  each  {ind  every  county  in  said 
district  on  the  said  day  of  election,  whereby  you  received  more  votes  than  you  were 
entitled  to,  to  wit,  one  thousand,  and  I  lostone  thousand  votes  in  said  election. 

So  this  contestant  verily  believes  and  avers  that  by  reason  of  said  irregularities, 
illegalities,  frauds,  violence,  force,  threats,  and  intimidations,  and  the  improper  count- 
ing and  canvassing  by  the  various  judges  of  election  and  couuty  canvassers  iu  the 
various  counties  in  said  district,  and  the  throwing  out  and  not  counting  of  votesgiven 
at  said  election  for  me,  the  election  was  changed;  and  if  it  were  not  for  the  irregu- 
larities, illegalities,  frauds,  violence,  force,  threats,  and  intimidations  and  imiirojier 
counting  by  the  various  judges  of  election  aud  county  canvassers  in  the  vai  ions  coun- 
ties in  said  district,  and  the  throwing  out  and  not  counting  said  votes  in  said  district 
given  forme,  that  I  would  be  elected  to  the  Forty-sixth  Congress  of  the  United  States 
for  the  first  district  of  North  Carolina. 

We  think  it  too  plain  for  argument  that  neither  of  these  specifications 
sets  out  particularly  that  the  board  of  election  officers  at  South  Mills 
were  not  properly  constituted  and  qualified  to  act.  This  ground  of  con- 
test is  not,  therefore,  open  to  the  contestant,  and  must  be  rejected. 

If,  however,  any  members  of  the  House  are  disposed  to  consider  this 
claim  on  the  evidence  presented,  we  have  to  say  that  the  registrar  and 
two  inspectors  were  the  regularly  appointed  registrar  and  inspectors. 
These  inspectors  were  sworn  by  the  sheriff.  J^o  authority  to  the  sheriif 
to  administer  oaths  has  been  shown  us.  A  third  inspector  was  ap- 
pointed by  the  registrar,  who  was  probably  not  sworn  by  anybody,  who 
acted  for  a  short  time,  and  whose  place  was  taken  by  Mr.  Sawyer,  who 
acted  as  inspector  without  formal  appointment,  but,  it  is  manifest  we 
think,  with  the  assent  of  the  registrar.  The  remaining  inspector  was 
not  appointed,  so  far  as  appears,  because  the  registrar  coukl  not  find 
any  one  who  would  serve.  There  is  no  evidence  that  any  of  these  offi- 
cers acted  unfairly  or  improperly,  except  in  the  particulars  hereinafter 
considered,  of  adjourning  for  dinner;  of  locking  up  the  ballot-box  whde 
at  dinner;  and  that  Overton  was  under  the  influence  of  liquor.  The 
officers  acting  must  betaken  to  he  de  facto  officers.  The  omission  to 
take  the  oath  will  not  vitiate  the  election.  (Section  79,  McCrary  on 
Elections,  and  cases  cited.)    The  principle  is  well  established  that  the 


YEATES    VS.    MARTIN.  399 

acts  of  public  officers  being  in  by  color  of  an  election  or  appointment^ 
are  valid  so  far  as  the  public  is  concerned. 

Bj  section  9,  chapter  275,  Acts  of  North  Carolina,  1877,  already  quoted, 
the  judges,  with  the  registrar,  "  shall  open  the  polls  and  superintend  the 
same  until  the  close  of  the  election." 

Sec.  20.  Wben  the  election  shall  be  finished,  the  registrars  and  judges  of  election^ 
in  presence  of  such  of  the  electors  as  may  choose  to  att*,'nd,  shall  open  the  boxes  and 
count  the  ballots,  &v. 

The  registrar  and  judges  of  election  constitute  a  board  for  the  pur- 
Ijoses  of  opening  the  polls,  superintending  the  election  until  the  close  of 
it,  and  for  counting  the  ballots.  And  on  general  principles  a  majority 
of  this  board  could  act  upon  the  matters  on  which  they  are  authorized, 
to  act  together,  and  the  registrar  and  two  judges  are  a  majority  of  this 
board.  Besides,  if  the  third  inspector  is  held  to  have  acted  under  the 
authority  of  the  registrar,  this,  so  far  as  the  rights  of  these  persons  are 
concerned,  should  be  taken  as  an  appointment,  and  three  judgts  are  a 
majority  of  four,  even  if  the  four  judges  be  taken  to  be  a  board  separate 
from  the  registrar. 

Chapter  108,  Battle's  Revised  Laws  of  iiorth  Carolina,  section  2, 
clause  2,  is : 

All  words  purporting  to  give  a  joint  authority  to  three  or  more  public  officers  or 
other  persons  shall  be  construed  jvs  giving  such  authority  to  a  majority  of  such  offi- 
cers or  other  persons,  unless  it  shall  be  otherwise  expressly  declared  in  the  law  giving 
the  authority. 

The  returned  vote  at  South  Mills  cannot,  therefore,  be  rejected  for 
the  reasons  that  the  election  officers  were  not  properly  sworn,  or  because 
there  were  not  four  judges  of  election  in  attendance. 

The  next  objection  is  that  Overton,  one  of  the  judges,  was  drunk 
while  in  the  performance  of  his  duties.  This  is  not  an  issue  raised  by 
the  notice  of  contest,  and  must  be  rejected.  The  evidence  of  two  wit- 
nesses is  that  Overton  was  under  the  intiuence  of  spirituous  liquors 
during  the  day,  and  this  is  all.  There  is  no  evidence  that  he  was  unable 
to  attend  to  his  duties,  or  that  he  did  not  properly  attend  to  them,  or 
that  he  wa.s  drunk,  except  this,  of  Barrington,  page  33 : 

Q.  Was  the  receiver  of  the  ballots  so  much  under  the  influence  of  liquor  that  he 
was  unable  to  attend  to  the  discharge  of  his  duties  at  the  polls  ? — A.  He  staid  at  the 
polls,  but  I  think  he  was  too  drunk  to  be  tit  for  business  that  day. 

Q."  Do  you  know  that  he  did  not  discharge  the  duties  of  his  office  that  day  f — A.  I 
do  not. 

Q.  Was  he  in  the  discharge  of  his  proper  duties  at  the  times  you  were  around  the 
polls  during  the  day  T — A.  ITe  was. 

The  reputation  of  Barrington  for  veracity  will  be  noticed  hereafter. 

This  does  not  invalidate  the  election.     (McCrary,  Section  124.) 

The  next  objection  is  that  there  was  an  adjournment  for  dinner  of 
about  an  hcmr,  at  12  o'clock.  This  is  not  an  issue  particularly  speci- 
fied in  the  notice,  and  must  be  rejected.  The  testimony  is  that  some- 
times the  election  officers  adjourn  for  dinner  and  sometimes  not,  and  at 
this  election  they  did  atljourn  at  about  12  o'clock  for  one  hour.  There 
was  ample  time  for  everv  one  to  vote.  This  does  not  vitiate  the  election. 
(Fry  vs.  Booth,  19  Ohio  St.  Reports,  25.) 

When  they  adjourned  for  dinner,  one  of  the  inspectors  took  the  bal- 
lot-box about  seventy-five  yards,  to  a  room  in  the  house  of  John  B. 
Spence,  the  registrar,  locked  it  in  the  room,  and  took  the  key,  and  at 
the  end  of  the  adjournment  got  the  ballot-box  and  carried  it  to  the 
pliice  of  voting.  This  is  not  an  issue  raised  by  the  notice  of  contest, 
and  must  be  rejected.  The  evidence  on  this  point  is  a«  follows :  John 
E.  Spence,  Democrat,  registrar,  pages  36,  37  : 


400  DIGEST    OF    ELECTION    CASES. 

Q.  What  became  of  the  box  that  contained  the  ballots  duriujj  that  time  ? — A.  Ouo 
«f  the  inspectors  who  received  the  ballots,  to  wit,  Evan  Overton,  took  the  box  con- 
taining the  ballots  to  a  room  about  seventy-five  yards  distant  from  the  polls,  and 
locked  it  in  and  took  possession  of  the  key. 

Owing  to  the  late  honr  of  the  day,  and  by  consent  of  attorneys  for  plaintiflF  and 
defendant,  the  taking  of  further  testimony  in  this  matter  closed  until  9  o'clock  Fri- 
day, the  26th  day  of  September,  1879. 

Pursuant  to  adjournment,  the  commission  reassembled  this  the  26th  day  of  Septem- 
ber, 1879,  and  the  testimony  of  John  E.  Spence  resumed. 

Question.  At  what  hour  did  the  inspectors  or  judges  again  open  the  polls  t — Answer. 
About  1  o'clock  p.  m. 

Q.  Who  carried  the  box  containing  the  ballots  back  to  the  place  of  voting  ? — A. 
Evan  Overton,  in  company  with  myself  and  Kenneth  R.  Sawyer. 

Q.  Has  it  not  always  been  customarj^  here  to  adjourn  the  voting  at  noon  for  dinner  ? 

(Question  objected  to  by  contestant's  counsel.) 

A.  Sometimes  they  adjourn  for  dinner  and  sometimes  they  do  not. 

Q.  What  was  the  room  used  for  in  which  the  ballot-box  was  deposited  during  the 
Adjournment  for  dinner  ? — A.  It  was  an  unoccupied  room  in  my  residence. 

Q.  Do  you  believe  that  the  ballot-box  was  safe  from  interference  during  the  ad- 
journment for  dinner  ? — A.  I  do. 

(The  above  question  objected  to  by  contestant's  counsel.) 

JOHN  E.  SPENCE. 

There  is  no  evidence  or  suggestion  that  the  ballot-box  was  tampered 
with.    This  does  not  vitiate  the  election. 

The  next  contention  in  argument  is  "  that  fraud,  violence,  intimida- 
tion, and  bribery  were  resorted  to  by  the  partisan  friends  of  the  contes- 
tee  to  force  a  majority  "  for  him.  This  is  not  properly  specified  in  the 
notice  and  must  be  rejected.  The  evidence  of  this  is  very  indefinite. 
No  voter  testifies  that  he  was  prevented  from  voting  by  fraud,  violence, 
or  intimidation.  The  two  persons,  and  the  only  two  persons  named  by 
Barriugton  as  deterred  from  voting  by  violence  or  intimidation,  or  in- 
duced to  vote  by  fraud  or  bribery,  are  James  Miller  and  Edmund  Saw- 
yer ;  both  contradict  it  (page  50).  The  testimony  of  Barrington  is  found 
on  pages  31-33,  10-12 ;  that  of  Abbott  on  pages  12, 13,  38,  39, 10.  Bar- 
rington, when  asked  directly,  "  Was  there  any  violence  used  to  influence 
the  election  ?  "  answered,  "  There  was  no  physical  violence."  The  tes- 
timony of  John  E.  Spence,  registrar,  pages  45,16;  of  William  S.  Jones, 
farmer,  page  47  ;  of  Calvin  Jones,  farmer,  pages  48,  49  ;  A.  P.  Cherry, 
deputy  collector  of  internal  revenue,  page  51,  is  all  to  the  effect  that 
there  was  no  iutimidation  or  violence.  Cherry,  page  52,  Jones, 
page  48,  testify  that  Barrington's  reputation  is  bad.  M.  J.  Overton, 
page  82 ;  Whitehurst,  i)age  86 ;  B.  J.  Overton,  page  86 ;  Halstead, 
page  87 ;  J.  L.  N.  Sawyer,  page  90,  testify  that  Barrington's  reputa- 
tion is  good — good  so  tar  as  they  know.  Barrington  was  a  mulatto, 
a  school-teacher,  a  partisan  of  Respass.  Barrington  himself  voted 
forRespass  (page  48).  JS'o  person  is  named  of  whom  it  is  proved  that 
he  voted  under  the  inducement  of  fear,  fraud,  or  bribery,  or  was  pre- 
vented from  voting  by  reason  of  violence  or  intimidation.  The  contest- 
ant does  not  claim  that  any  elector  was  prevented  from  voting  for  him 
by  violence  or  intimidation,  or  was  induced  not  to  vote  for  him  by  fraud 
or  violence.  This  contest  is  between  the  partisans  of  Martin  and  the 
partisans  of  Respass,  who  was  called  an  Independent  Republican  candi- 
date. We  find  the  whole  charge  of  fraud,  intimidation,  violence,  and 
briber}'  unfounded  in  fact. 

VANDEMERE   PRECINCT. 

The  specification  in  the  notice  of  contest  is  as  follows : 
Specification  11. — That   at  the  precinct  of  Yaudemere,  in  Pamlico  County,  the  polls 


YEATES    VS.    MARTIN.  401 

were  not  opened  until  between  the  hours  of  9  o'clock  a.  m.  and  12  o'clock  m.  on  said 
day  of  election,  whereby  many  persons  who  desired  to  vote  for  me,  to  wit,  sixty  or 
mure,  were  prevented  from  so  doing.  That  at  said  precinct  of  Vanderaere  the  persons 
who  acted  as  judges  of  election  and  conducted  said  election  were  not  lawfully  ap- 
pointed, but  were  mere  usurpers.  That  no  proper  certificate  of  said  election  was  re- 
turned to  the  county  canvassing-board ;  and  that  twenty  or  more  votes  were  counted 
and  returned  to  the  county  canvassing-board  than  were  voted,  as  shown  by  the  poll 
and  register  list  kept  by  the  said  judges  of  election.  That  at  said  precinct  you  are 
reputed  to  have  received  a  niajorily  of  forty-one  votes  or  more.  I  object  to  the  votes 
given  at  Vandemere  precinct,  in  Pamlico  County,  on  said  day  of  election  being  counted. 

The  returned  vote  at  this  precinct  Is,  Yeates,  31 ;  Martin  71 ;  major- 
ity for  Martin,  40  (page  2). 

Tbe  testimony  of  H.  C.  Holton,  tbe  registrar,  and  a  Democrat,  is  as 
follows : 

Deposition  of  H.  B.  Uolton. 

H.  C.  Holton  personally  appeared  before  me,  James  H.  Miller,  clerk  of  the  supe- 
rior court  of  Pamlico  County,  State  of  North  Carolina,  commissioner  to  take  deposi- 
tions in  the  case  of  Jesse  J.  Yeates  against  Joseph  J.  Martin,  and,  after  being  duly 
sworn,  deposeth  and  says: 

That  he  lives  at  Vandemere;  age,  twenty-eight  years.  Vandemere  is  a  voting  place 
in  Pamlico  County.  Was  registrar  at  tlie  election  held  at  Vandemere  in  November, 
1878  ;  that  the  election  was  held  for  Congressman  ;  don't  remember  the  exact  day  of 
©lection,  but  it  was  in  November,  1878. 

Questiou.  Do  you  kuow  whether  this  election  was  held  on  the  regular  election  day 
for  Congressman  in  November,  1878  ? — Answer.  It  was  the  day 

(Question  objected  to  by  defendant's  counsel;  objection  overruled.) 

Q.  Was  this  election  day  in  accordance  with  the  orders  in  your  appointment  from 
the  board  of  county  commissioners  of  Pamlico  County  as  registrar  f — A.  It  was. 

Q.  In  what  Congressional  district  is  Vanderaere  ])recinct,  and  what  were  the  names 
of  the  candidates  voted  for  at  this  election? — A.  I  don't  recollect  the  number  of  the 
Congressional  district;  the  persons  voted  for  were  Jesse  J.  Yeates,  Joseph  J.  Martin, 
and  John  B.  Respass. 

Q.  At  what  time  were  the  polls  open  at  this  election? — A.  I  do  not  know  exactly, 
but  about  11  o'clock  a.  m. 

Q.  What  was  the  regular  hour  for  opening  the  polls  according  to  law  ? 

(Question  objected  to;  objection  overruled.) 

A.  Seven  o'clock  a.  m. 

Q.  What  were  the  causes  of  the  polls  not  being  open  at  an  earlier  hour? — A.  The 
judges  appointed  were  not  there. 

Q.  Do  you  know  this  of  your  own  knowledge  ? — A.  I  kuow  that  they  were  not 
there. 

Q.  Did  you  endeavor  to  appoint  inspectors  according  to  the  powers  delegated  to 
you  as  registrar T — A.  I  did. 

Q.  Did  you  succeed  in  getting  men  from  both  parties  at  an  earlier  hour  than  11 
o'clock  to  serve  as  inspectors  t — A.  I  did  not.  I  got  enough  men  from  both  parties  to 
.serve  iis  inspectors  at  or  near  11  o'clock. 

Q.  Did  the  laws  require  that  you  should  appoint  two  inspectors  from  each  of  th© 
political  parties? 

(Question  objected  to;  objection  overruled.) 

A.  The  law  does  so  require. 

Q.  Did  you  appoint  any  of  the  inspectors  from  either  party  before  the  hour  of  11 ; 
jind,  if  so,  from  what  party  ? — A.  I  did  appoint  two  of  the  inspectors  some  time  before 
11  o'clock  ;  don't  remember  the  exact  time ;  they  were  both  from  the  Democratic  party. 

Q.  Did  you  appoint  any  from  the  Republican  party  before  this  time;  if  so,  did  they 
refuse  to  serve  f — A.  I  did  appoint  one  ;  he  refused  to  serve. 

Q.  Was  not  the  polls  prevented  from  being  opened  at  an  earlier  hour  on  account  of 
Republicans  refusiug  to  serve  as  inspectors  ? — A.  That  was  the  reason  that  the  polls 
were  not  open  sooner. 

Q.  Do  you  know  whether  any  Democrats  left  the  polls  without  voting  before  the 
I)olls  were  opened? — A.  I  do  know  that  some  Democrats  left  before  the  polls  were 
opened  without  voting. 

Q.  Did  any  one  object  to  your  opening  the  polls  at  11  o'clock  on  account  of 
.some  Democrats  having  left  without  voting,  and  for  reasons  that  a  fair  election  sould 
not  be  had  ? — A.  There  was  such  objecti<m. 

Q.  Did  any  Democrat*  leave  the  precinct  without  voting  and  before  you  had  ap- 
pointed the  Democratic  inspectors  ?— A.  The  Demooaats  had  not  left. 

H.  Mis.  58 26 


402  DIGEST  OF  ELECTION  CASES. 

Q.  Did  yon  know  about  the  difference  between  the  number  of  votes  registiered  at 
that  precinct  and  the  number  of  votes  oast  at  that  election  t  If  not  the  exact  num- 
ber, about  what  was  the  nnmber  that  failed  to  voteT — A.  Abont  sixty. 

Q.  What  do  you  mean  by  sixty? — A.  I  mean  that  sixty  is  the  difference  between 
the  voters  registered  and  the  votes  cast. 

Q,  Did  the  Republican  party  poll  about  its  nsnal  vote  at  that  election  at  that  pre- 
cinct t— A.  It  did.  '  » 

Q.  Was  almost  the  entire  falling  off  'of  voting  at  this  precinct  on  the  part  of  the 
Democratic  party  ? — A.  It  was. 

Cross-examined  by  defendant : 

Q.  What  honr  did  yon  go  to  the  place  where  the  polls  were  to  be  opened  T — A.  Abou^ 
7  o'clock. 

Q.  Who  did  yon  find  there? — A.  I  do  not  remember  at  present. 

Q.  How  many  persons  were  present  t — A.  Five  or  six. 

Q.  How  long  did  you  wait  before  yon  took  steps  to  supply  the  place  of  the  absent 
inspectors  T — A.  About  one  honr. 

Q.  How  many  Republicans  did  you  apply  to  to  act  as  inspector  T^A.  I  only  applied 
to  one,  that  I  remember. 

Q.  Did  he  refuse! — A.  He  did. 

Q.  Did  he  assign  auy  reason  for  his  refusal  f — A.  The  only  reason  that  he  assigned 
yras  that  he  did  not  care  about  it,  and  thought  that  I  could  get  somebody  that  would 
do  bett^^r ;  he  could  not  read  and  write. 

Q.  Was  this  person  a  white  nwn  or  a  colored  manT — A.  He  was  a  colored  man. 

Q.  Did  the  persons  who  left  the  precinct  before  the  polls  were  opened  know  that 
uteps  were  being  taken  to  open  the  polls T — A.  They  did. 

Q.  How  many  came  and  left  before  the  polls  were  opened  ? — A.  I  suppose  about  ten 
or  fifteen. 

Q.  Were  they  all  persons  who  voted  the  Democratic  ticket? — A.  I  think  they  were. 

Q.  Did  yon  then  or  previously  hear  any  expression  among  the  members  of  the  Dem- 
ocratic party  voting  at  that  precinct  of  dissatisfaction  with  the  nominee  of  that  party 
after  he  was  nominated  ? 

(The  plaintiff's  counsel  objects  on  the  ground  that  witness  cannot  st>ate  general 
rumors,  but  can  only  state  what  voters  at  this  precinct  said  on  the  day  of  the  election 
to  him,  the  witness.     Objection  overruled.) 

A.  I  did  not  hear  any  objection  then  or  at  any  other  time. 

Q.  Who  made  objection  to  your  opening  the  polls  at  11  o'clock? — A.  I  do  not  re- 
member at  this  time. 

Q.  How  many  so  objected  ? — A.  I  think  two  or  three. 

Q,  How  many  registered  voters  were  there  in  Vandemere  precinct  at  that  elec- 
tion?— A.  I  do  not  remember,  but  about  one  hundred  and  sixty,  I  think. 

Q.  Was  there  a  general  turnout  of  the  Democratic  party  at  that  election  ? — A.  I 
don't  think  there  was  a  general  turnout. 

Q.  What  kind  of  weather  was  there  on  that  election  day  ? — A.  I  think  it  was  fair 
weather. 

Q.  What  was  the  condition  of  the  roads? — A.  Pretty  good. 

Q.  Did  you,  on  discovering  that  parties  intended  leaving  without  voting,  remon- 
strate with  them  ? — A.  I  think  I  did. 

Q.  What  did  they  reply  ? — A.  I  do  not  remember. 

Q.  Did  any  Republicans  leave  without  voting? — A.  I  don't  think  they  did. 

Q.  At  what  hour  did  the  polls  close  that  day  l — A.  The  polls  closed  at  sunset. 

Q.  Did  every  person  at  the  polls  have  a  fair  and  free  opportunity  oi  voting  after 
the  polls  were  opened  ? — A.  They  did. 

Q.  Was  there  any  crowding,  disturbing,  or  intimidation  used  to  prevent  voters 
from  voting  ? — ^A.  There  was  none. 

Q.  Did  any  persons  apply  aft*r  the  polls  were  closed  to  be  allowed  to  vote  ? — A, 
No. 

Redirect  examination  by  plaintiff's  counsel: 

Q.  How  long  did  these  Democrats  remain  at  the  polls  before  11  o'clock,  and  after 
they  found  out  that  steps  were  being  taken  to  appoint  inspectors,  and  if  the  witnes* 
did  not  say  to  them  that  he  thought  it  doubtful  and  was  afraid  that  he  would  not  be 
able  to  procure  Republican  inspectors  fur  this  election? — A.  I  don't  know  how  long 
they  remained.  I  think  some  of  them  were  there  an  honr  or  two  after  they  knew 
steps  were  being  taken  to  open  the  poll ;  some  staid  until  near  the  time  the  polls  wero 
opened.  I  do  not  remember  anything  that  I  said  to  any  one  concerning  the  opening 
the  polls.  I  think  it  was  very  likely  that  I  did  say  something  in  regard  to  the  polls 
not  being  opened  that  day. 

Q.  If  the  reason  why  on  this  day  of  election  there  was  not  a  general  turnout  of  th« 
Democratic  party  was  not  becatise  it  was  rumored  that  there  was  being  no  election 


YEATES    VS.    MARTIN.  403 

lield  at  that  precinct? — A.  I  think  that  was  the  reason  why  there  was  not  a  general 
turnout  of  the  Democratic  party. 

Q.  If,  before  these  Democrats  left  the  polls,  you  had  asked  other  Republicans  to 
be  inspectors  besides  this  colored  man,  and  if  these  did  not  refuse  f — A.  I  do  not  re- 
luember. 

Q.  What  ticket  do  you  generally  vote? — A.  The  Democratic. 

Q.  What  political  party  do  you  generally  vote  with? — A.  The  Democratic. 

H.  C.  HOLTON. 

The  deposition  of  F.  P.  Gatlin,  clerk  on  the  day  of  election,  is  as  fol- 
lows: 

Deposition  of  F.  P.  Gatlin. 

F.  P.  Gatlin  personally  appeared  before  me,  J.  H.  Miller,  clerk  superior  court  of 
Pamlico  County,  North  Carolina,  and  commissioner  to  take  depositions  in  the  case 
of  Jesse  J.  Yeates  against  Joseph  J.  Martin,  being  duly  sworn,  deposeth  and  says: 

I  am  a  resitlent  of  Pamlico  County,  North  Carolina;  age,  thirty-three  years,  aud  was 
clerking  at  Vaudemere,  N.  C,  the  5th  day  of  November,  187d,  at  the  store  of  John  R. 
McCotter.  1  was  clerk  there  on  the  day  of  election  for  Congressman,  Jesse  J.  Yeates, 
Joseph  J.  Martin,  and  John  B.  Respass  being  candidates.  The  polls  were  held  at  John 
B.  McCotter's  store.  The  polls  were  opened  on  that  day  at  11^  a.  m. ;  this  I  knew  by 
looking  at  my  watch.     I  wished  to  know. 

(Motion  here  made  by  defendant's  counsel  that  the  witnesses  for  plaintiff,  except 
the  one  on  the  stand,  leave  the  room.  Objected  to  by  plaintiff's  counsel.  Motion 
overruled. ) 

Question.  Why  did  you  wish  to  know  ? — Answer.  I  wished  to  know  because  I 
thought  it  illegal. 

Q.  Do  you  know  how  many  persons  left  the  precinct  before  the  election  com- 
menced i — A.  About  six,  of  my  belief;  and  these  were  Democrats.  Others  might  have 
left  and  I  not  have  known  it. 

Q.  Was  this  a  full  election  ? — A.  It  was  not. 

Q.  Was  the  Repuhlieau  vote  full  at  that  election? — A.  I  think  it  was. 

Q.  Wa^stiie  Democratic  vote  at  that  election  full! — A.  It  was  not. 

Q.  Was  there  any  general  rumor  why  the  voting  was  not  full  at  this  election  T 

(Defendant's  counsel  objects;  objection  overruled.) 

A.  There  was  at  this  precinct.  The  reason  was  just  this,  that  the  voters,  so  many 
of  them  leaving  before  the  polls  being  opened,  that  we,  a  few  of  us  at  Vaudemere, 
thought  that  this  was  the  reason  that  the  Democrats  did  not  turn  out. 

Q.  Did  you  ever  hear  any  voter  of  the  Vandemere  precinct  state  that  the  reason 
why  he  di<l  not  vote  at  this  election  was  because  the  understanding  in  the  country 
was  that  there  was  no  election  being  held  there  on  that  day,  and  was  tbis  voter  a 
Democrat  ? 

(Defendant's  eoiinsel  objects,  unless  the  answer  be  contined  to  expressions  before  or 
on  the  day  of  electiou  ;  objection  overruled.) 

A.  I  think  I  did  hear  one  man  say  he  should  have  come  but  he  did  not  think  there 
wuuld  be  any  election  ;  and  this  man  was  a  Democrat. 

Q.  Did  yon  or  do  you  know  of  any  one  trying  to  get  Republicans  to  act  as  inspect- 
ors, that  the  polls  might  be  opened  at  an  earlier  hour  than  they  were  ;  aud,  if  so,  do 
yon  know  the  reasons  they  gave  for  refusing  to  act  f — A.  I  did  not  try,  but  .Mr.  Holton 
did.  We  wanted  to  know  if  any  Republicans  were  there,  and  none  would  acknowl- 
edge that  they  were  Republicans 

Q.  Did  anyof  those  parties  afterwards  vote;  and,  if  so,  what  ticket  did  they  vote? — 
A.  They  did  vote.  I  am  not  positive  what  ticket  they  voted,  but  they  worn  Repub- 
licans. 

Q.  Ditl  not  Mr.  Holtop,  the  registrar,  make  a  public  proclamation  or  ask  publicly, 
if  there  was  any  Republicans  present,  if  they  would  not  act  as  inspectors,  before  il 
o'clock  a.  m.  f  ao<l,  if  so,  state  if  when  the  inquiry  was  made  there  was  not  Repub- 
licans present. — A.  He  did.  but  they  would  not  acknowle<lge  they  were  Republicans, 
but  they  were  Republicans. 

Q.  How  long  have  you  been  a  resident  of  Vandemere  precinct,  and  do  yon  know 
how  the  precinct  stood  in  regard  to  parties  at  this  electiou  ;  whether  it  was  a  Demo- 
crat or  Republican  precinct  ? — A.  I  have  been  there  seven  years;  it  has  heretofore,  up 
to  the  last  election,  gone  Democratic. 

Q.  Are  you  generally  acquainted  with  the  politics  of  the  voters  of  this  precinct ;  and 
if  so,  what  was  its  politics  at  the  time  of  t)ie  election  in  November,  1878,  according  to 
your  best  knowledge  and  information  f — .\.  I  was,  up  to  the  election  of  1878,  acquainted 
with  the  politics  of  the  precinct,  and  to  the  best  of  my  knowletlge  it  was  Democratic. 
In  1878  I  think  it  would  be  a  close  vote. 


404  DIGEST  OF  ELECTION  CASES. 

Q.  If  at  and  from  the  time  of  the  nomination  of  Mr.  Martin  by  the  Republican  party 
if  there  was  not  some  dissatisfaction  in  the  Republican  party  ait  that  precinct  against 
Mr.  Martin  ? — A.  I  do  not  know. 

Q.  Was  not  John  B.  Respass  a  candidate  for  Congress  at  this  election  and  an  Inde- 
pendent Republican,  and  did  he  receive  any  votes  at  this  precinct  f — A.  He,  Respass, 
was  an  Independent  Republican  candidate.     I  think  received  a  vote  or  votes. 

Q.  Was  not  the  feeling  of  the  Democratic  party  of  that  precinct  strongly  in  favor 
of  Mr.  Yeates? — A.  I  think  it  was  ;  I  am  a  Democratic  voter  at  that  precinct. 

FRANCIS  P.  GATLIN. 

Holtou's  (the  registrar)  testimony  is  that  he  got  enough  men  from 
both  parties  to  serve  as  inspectors  at  or  near  11  o'clock. 

The  polls  were  opened  at  11^  o'clock  (Gatlin). 

The  other  depositions  in  this  precinct  are,  Caldwell,  page  19 ;  McCot- 
ter,  page  21 ;  Eiggs,  pages  22,  23 ;  Patrick,  page  23 ;  Muse,  page  23 ; 
liiggs,  page  24;  Jones,  page  24;  John  C.  Muse,  page  25;  James  Muse, 
page  25 ;  Bland,  page  25. 

It  is  evident  that  the  reason  of  the  delay  in  opening  the  polls  was  the 
absence  of  some  of  the  judges  of  election,  and  that  the  registrar  endeav- 
ored to  appoint  judges,  but  did  not  succeed  in  making  the  appointments 
until  about  11  o'clock ;  that  the  intention  to  have  an  election  was  never 
abandoned ;  that  the  persons  who  left  the  precinct  before  tbe  polls 
were  opened  knew  that  steps  were  being  taken  to  open  the  polls,  and 
that  the  registrar  thinks  he  remonstrated  with  the  persons  who  intended 
to  leave  without  voting,  and  says  that  every  person  at  the  polls  had  a 
fair  and  free  opportunity  of  voting  after  the  polls  were  opened,  and  that 
there  was  no  crowding,  disturbance,  or  intimidation,  and  no  person  of- 
fered to  vote  after  the  polls  were  closed. 

Under  the  statutes  of  North  Carolina,  which  provide  for  filling  vacan- 
cies, as  has  been  said,  some  delay  is  inevicable,  and  when  the  registrar 
is  present  and  is  endeavoring  to  fill  the  vacancies  it  is  the  duty  of  the 
voter  to  wait,  and  if  be  leaves  before  there  is  a  formal  announcement  by 
the  registrar  that  there  will  be  no  election  held,  or  before  the  holding 
of  an  election  has  been  manilestly  abandoned,  he  leaves  voluntarily,  and 
his  vote  cannot  be  counted. 

If  it  becomes  important  to  determine  how  many  persons  left  before 
the  polls  were  opened,  reference  is  made  to  the  following  testimony : 
Holton,  the  registrar,  says:  "I  suppose  above  ten  or  fifteen;"  and  he 
thinks  they  were  all  persons  who  voted  the  Democratic  ticket.  Gatlin, 
the  clerk,  says,  "About  six,  in  my  belief;  and  these  were  Democrats. 
Others  might  have  left  and  I  not  have  known  it."  McCotter  says  "  five." 
The  witnesses  who  swear  that  they  left,  or  did  not  go  to  the  polls,  under 
a  belief  that  no  election  would  be  held,  and  that  they  would  have  voted 
for  Yeates,  are  Jesse  Eiggs,  page  23;  Patrick,  page  23;  John  W.  Muse, 
page  23;  James  Riggs,  page  24 ;  Joshua  Jones,  i)age24;  Seth  Muse, 
page  25 ;  John  C.  Muse,  page  25 ;  Joshua  Bland,  page  26 — eight  in  all. 
In  any  view,  this  is  all  the  injury  that  we  find  has  been  done  to  Mr. 
Yeates  by  the  delay  in  the  opening  of  the  polls. 

The  charge  of  conspiracy  and  fraud  on  the  part  of  the  Republicans  to 
I)revent  the  opening  of  the  polls  is  not  sustained  by  the  evidence.  None 
of  the  regular  inspectors  were  present  at  the  opening  of  the  polls,  and 
only  five  or  six  persons.  The  registrar  appointed  two  Democratic  in- 
spectors, who  accepted,  and  one  Rei)ublican,  a  colored  man,  who  declined 
because  he  could  not  read  or  write,  and  this  is  the  only  person  he  applied 
to  that  he  can  remember  until  he  made  the  Re[)ublican  appointments. 
Gatlin,  the  Democratic  clerk,  says  there  were  Republicans  present,  but 
they  would  not  acknowledge  they  were  Republicans ;  but  Caldwell,  a 
Democrat  and  poll-holder,  says,  pages  20,  21,  that  the  registrar  tried  one 


YEATES    VS.    MARTIN.  405 

Kepublican,  a  colored  man,  who  assigned  as  a  reason  for  not  acting  that 
he  thought  the  registrar  could  do  better,  as  he  could  not  read  and  write, 
and  that  at  10.30  o'clock  there  were  perhaps  fifteen  persons  assembled, 
none  of  them  Kepublicans,  so  far  as  he  knew.  This  was  a  small  voting 
precinct ;  the  voters  assembled  slowly,  and  the  delay  in  opening  the 
polls  was,  under  the  circumstances,  natural  enough. 

HAMILTON   PRECINCT. 

At  this  precinct  the  votes  returned  are  161  for  Yeates  and  225  for 
Martin. 

Tlie  contestant  contends  that  the  vote  of  Hamilton  precinct  should 
not  be  counted  on  account  of  the  conduct  of  contfestce  "discharging  the 
duties  of  registrar,  checking  off  the  liames  of  persons  who  presented 
themselves  to  vote,  and  doing  other  and  like  duties  of  that  oflSce."  The 
other  objections  found  in  this  notice  of  contest  in  regard  to  Hamilton 
precinct  were  abandoned  at  the  argument. 

All  the  evidence  on  this  subject  is  as  follows : 

Deposition  of  Everitt  (page  42). 

Justus  Everitt,  being  duly  sworn,  says,  in  response  to  the  following  qnestion  in 
writing: 

Question.  State  whether  you  were  present  at  the  election  in  Hamilton,  in  Martin 
County,  North  Carolina,  on  the  5th  day  of  November,  1878,  at  which  election  Jesse  J. 
Yeates  and  Joseph  J.  Martin  were  candidates  for  a  seat  in  the  present  Congress  of  the 
United  States,  and  what  acts,  if  any,  the  said  Martin  did  in  reference  to  the  conduct- 
ing and  managing  said  election.  State  fully  his  acts  and  conduct  at  said  election. — 
Answer.  I  was  there  a  part  of  the  time,  and  Mr.  Martin  was  also  present  and  had 
charge  of  the  registration  books,  and  had  charge  when  I  left,  which  was  in  a  few 
minutes. 

Cross-examined : 
Q.  What  Mr.  Martin  did,  was  it  done  in  the  presence  of  the  poll-holders  T — A.  It 
was. 
Q.  Did  Mr.  Martin  act  corruptly  T — A.  Not  that  1  know  of. 

JUSTUS  EVERITT. 

Deposition  of  J.  0.  Carraway. 

Jonathan  G.  Carraway,  being  duly  sworn,  says,  in  response  to  the  following 
question  in  writing : 

Question.  State  whether  you  were  present  at  the  election  held  in  Hamilton,  in  Mar- 
tin County,  North  Carolina,  on  the  5th  of  November,  1878,  at  which  election  Jesse  J. 
Yeates  and  Joseph'J.  Martin  were  candidates  for  a  seat  in  the  present  Congress  of  the 
United  States,  and' what  acts,  if  any,  the  said  Martin  did  in  reference  to  the  conduct- 
ing or  managing  said  election.  State  fully  his  acts  and  conduct  at  said  election. — 
Answer.  I  was  present  on  the  day  of  election  spoken  of;  Mr.  Martin  was  present 
around  the  polls,  and  I  saw  him  check  off  some  of  the  registered  names  of  voters  as 
they  voted  ;  and  my  impression  is  that  at  one  time  he  came  around  the  counter  where 
the  judges  of  election  were,  and  while  on  the  side  of  the  counter  where  the  judges  of 
election  were  I  think  he  did  not  check  off  any  names  while  there;  and  when  he 
checked  off  names  he  was  on  the  side  of  the  counter  where  the  people  came  up  to  vote. 
Further  this  deponent  saith  not. 

Cross-examined : 

Q.  How  many  names  did  Mr.  Martin  check  off  the  poll-book  T— A.  I  can't  say  posi- 
tively, but  I  think  he  checked  off  some  forty  or  fifty. 

Q.  'Was  the  checking  off  done  in  the  presence  of  the  poll-holders  t — A.  I  thi  nk  it 
was,  or  a  majority  of  them. 

Q.  Did  Mr.  Martin  act  corruptly  in  checking  off  the  names  t — A.  Not  that  I  kn  ow  ofc 

Q.  Who  received  the  votes? — A.  W.  K.  Gladson. 

Q.  Was  any  man's  name  deposited  in  the  box  before  his  name  was  checked  off  of  the 
poll-book  ? — A.  None  that  I  know  of. 


406  DIGEST    OF    ELECTION    CASES. 

Q.  Were  you  one  of  the  judges  at  said  electiou  ?— A.  I  was  acting  as  registrar  for 
Mr.  Justus  Everitt,  who  was  the  legally  appointed  registrar. 

Q.  Wa^  the  election  conducted  fairly  ? — A.  So  far  as  I  know. 

(The  counsel  for  the  contestant  objects  to  the  above  upon  the  ground  that  it  is  going 
into  new  matter.) 

Q.  What  party  do  you  belong  to? — A.  To  the  National  Democratic  party. 

Q.  Who  did  you  vote  for? — A.  I  voted  for  Jesse  J.  Yeate*. 

(The  counsel  for  the  contestant  objects  to  the  two  above  questions  upon  the  gronnds 
of  the  first  objection,  as  being  immaterial  or  irrelevant.) 

Q.  How  was  the  party  divided  of  those  votes  that  was  checked  off"  by  Mr.  Martin  t — 
A.  I  don't  know. 

J.  G.  CARRAWAY. 

The  statute  of  North  Carolina,  section  5,  chapter  275,  Acts  of  1877, 
is — 

*  *  *  If  any  registrar  shall  refuse  or  uegloct  to  perform  his  duties  the  justices  of 
the  peace  for  the  township  may  remove  him  and  appoint  another  iu  his  place.  And 
no  person  who  is  a  candidate  for  any  oflfice  shall  be  a  registrar,  or  judge,  or  inspector 
of  an  election. 

It  is  not  contended  tliat  Mr.  Martin  was  appointed  either  rejjfistrar,  or 
judge,  or  inspector  of  elections.  So  far  as  appears,  these  offices  were  all 
filled  by  other  ])ersons,  who  were  present  and  performing  their  duties. 
Mr,  Martin  acted  in  the  i)resence  of  the  poll-holders.  Mr.  Carraway  was 
the  acting  registrar.  Mr.  Martin  checked  off  some  names  on  the  regis- 
tration book  when  on  the  side  of  the  counter  where  the  people  came  to 
vote,  and  at  one  time  came  aroundthecounter  where  the  judges  of  elec- 
tiou were,  but  did  not  check  off  any  names  while  there.  Then  it  seems 
that  he  did  not  act  corrupt!}',  and  that  the  election  was  fairly  conducted, 
and  that  he  took  no  part  in  receiving  votes  or  keeping  the  poll  book,  and 
there  is  no  evidence  that  anj-  person  was  permitted  to  vote  who  was  not 
entitled  to  vote,  or,  being  entitled,  was  prevented  from  voting,  or  that 
any  votes  were  improperly  received  orcounted,  or  that  Mr.  Martin's  con- 
duct had  any  effect  whatever  upon  the  election.  This  conduct  of  Mr. 
Martin  may  have  been  an  act  of  indiscretion,  but,  in  the  absence  of  any 
evidence  that  it  ju'oduced  any  effect  upon  the  election,  we  do  not  think 
that  an  J-  weight  should  be  attached  to  it. 

PEOVIDENCE   TOWNSHIP. 

The  returns  from  Providence  Township  were  rejected  by  the  county 
canvassing- board  of  Pasquotank  County  for  the  reason  that  the  returns 
were  delivered  to  the  board  by  the  registrar  and  not  by  one  of  the  judges 
of  election.  The  returns  showed  that  Mr.  Yeates  had  received  thirty- 
nine  (39)  more  votes  iu  this  precinct  than  Mr.  Martin  (page  14.)  The  con- 
testee  admits  that  this  objection  is  not  sufficient  to  justify  the  committee 
iu  rejecting  this  return,  but  insists  that,  if  counted,  the  returns  from 
Salem  precinct  should  also  be  counted. 

Section  21,  chapter  275,  Acts  of  K"orth  Carolina  of  1877,  is : 

The  judges  of  election  in  each  township,  ward,  or  precinct,  shall  appoint  one  of  their 
number  to  attend  the  meeting  of  the  board  of  county  canvassers  as  a  member  thereof, 
and  shall  deliver  to  the  member  who  shall  have  been  so  appointed  the  original  returns, 
statement  of  the  result  of  the  electiou  in  such  township,  ward,  or  precinct;  and  it 
shall  be  the  dnty  of  the  members  of  the  several  township,  ward,  or  precinct  boards 
of  election  to  attend  the  meeting  of  the  board  of  county  canvivssers  for  such  election 
in  the  county  in  which  they  shall  have  been  appointed  as  members  thereof. 

And  by  section  2v!  a  majority  of  the  members  shall  be  sufficient  to 
constitute  such  board.  While  for  certain  purposes  the  registrar  and 
judges  of  electiou  act  together  as  a  board  of  election,  yet  there  are  cer- 
tain duties  which  by  statute  pertain  to  the  registrar  alone,  and  certain 


YEATES    VS     MARTIN.  407 

otlfers  which  aloue  can  be  performed  by  the  judges  of  election.  If  the 
registrar  retuses  or  neglects  to  perform  his  duties,  the  justices  of  the 
peace  may  remove  him  aud  appoint  another  in  his  place;  but  if  the 
judges  of  election  fail  to  attend,  the  registrar  shall  appoint  some  dis- 
creet person  to  act  as  such.  We  think,  therefore,  that  section  21  re- 
quires the  judges  of  election  to  appoiut  one  of  their  own  number  to  at- 
tend the  said  meeting  of  the  board  of  county  canvassers  and  deliver 
the  returns ;  that  the  registrar  is  excluded,  aud  that  a'registrar  could 
not  act  as  one  of  the  board  of  county  canvassers,  aud  is  not  the  person 
designated  by  law  to  deliver  the  original  returns  to  such  board. 

But  if  the  returns  be  delivered  by  any  person,  and  it  be  shown  to  be 
the  true  return,  we  know  no  reason  why  it  should  not  be  counted,  and 
it  is  not  disputed  that  the  returns  from  Providence  Township  truly 
showed  that  Mr.  Yeates  had  39  votes  over  Mr.  Martin.  We  think  these 
votes  should  be  counted  for  Mr.  Yeates. 

This  is  the  case  made  by  the  contestant. 

The  contestee  in  his  counter  allegations  contends  that  votes  in  addi- 
tion to  those  returned  for  him  should  be  counted  for  him  in  Salem  pre- 
cinct, in  Merry  Hill  precinct,  aud  in  Goose  Nest  precinct. 

SAiEM  PEECINCT. 

The  votes  cast  at  this  precinct  were  :  for  Yeates,  29 ;  for  Martin,  164; 
fi)r  Respass,  7 ;  Martin's  plurality  135.  The  returns  were  rejected  by 
the  board  of  county  canvassers,  it  is  alleged,  on  the  same  ground  as  the 
returus  from  Providence  was  rejected,  to  wit,  that  the  registrar,  and  not 
one  of  the  judges  of  election,  was  appointed  to  deliver  and  did  deliver 
the  original  returns  to  the  board  (page  oii).  The  following  is  the  testi- 
mony on  this  point: 

Q.  State  Avhether  you  werw  a  member  of  the  county  cauvassing-board  for  the  county 
■of  Pasquotank,  who  canvassed  the  returus  from  the  several  {)recincts  in  said  county  at 
«ai(l  elertion. — A.  I  was  registrar  of  the  election  at  Salem  precinct,  and  brought  the  re- 
turns of  tlie  election  from  that  precinct  to  the  county  canvassing-boardof  said  county 
at  the  request  and  by  the  direction  of  the  poll  inspectors  who  conducteil  the  same,  and 
claimed  the  right  to' act  as  a  member  of  said  returning-board,  but  by  a  majority  vote 
of  the  board  1  W2«  not  allowed  to  do  so. 

Q.  Were  you  present  when  i<aid  boanl  considered  said  returns,  and  do  you  know 
what  actioil  they  took  in  regard  to  them  ' — A.  I  was  present ;  they  proceeded  to  can- 
vass the  returns  from  Salem  precinct,  and  refused  to  count  them. 

Q.  State  whether  there  is  in  your  office,  as  register  of  deeds  for  said  county,  any 
record  of  the  action  of  the  canvassiug-board  for  the  county  of  Pasquotank  in  reference 
to  the  returus  from  said  precinct  at  said  election ?— A.  Yes;  it  appears  from  a  book 
am«>ng  the  records  of  my  otlice,  styled  "  Election  book,"  which  book  I  now  hold  in  my 
hand,  that  the  following  entry  was  made  on  page  47  of  the  same,  headed  "  Record  of 
an  I'U'ctiou  held  for  Represeutative  in  Congress  and  senators  and  representatives  m 
the  general  assembly,  on  Tues«lay  after  the  first  Monday  in  November,  1878,  in  the 
county  of  Pasquotank,  North  Carolina,"  to  wit: 

"The  votes  as  returned  V)y  the  board  of  canvassers  from  the  precincts  of  Salem  and 
Providence  were  not  received  and  counted  by  the  board  on  account  of  informality, 
aud  therel'dU'  not  counted  in  the  above  statement.  Signed,  R.  F.  Overman,  clerk 
board  county  canvassers." 

(Question  and  answer  both  objected  to  on  account  of  incompetency  by  contestant's 
counsel.) 

So  far  as  this  alleged  reason  is  concerned,  it  is  no  ground  whereby 
the  committee  can  reject  the  return,  as  stated  in  the  case  of  Providence 
Township.  The  contestant  further  objects  to  counting  the  votes  at  this 
precinct,  because,  as  he  says : 

1st.  The  ])olls  were  not  opened  until  12  o'clock  m. 

2d.  That  before  they  were  opened  some  twenty-five  or  thirty  voters 
Lad  left. 


408  DIGEST  OF  ELECTION  CASES. 

3d.  That  nearly  one-half  of  the  entire  vote  of  the  precinct  was  not 
polled. 

4th.  That  no  registrar  was  duly  or  legally  appointed. 

5th.  That  the  other  officers  of  election  were  not  duly  appointed  or 
sworn. 

The  following  is  the  whole  testimony  on  these  points : 

Deposition  of  James  8.  Wilcox. 

Jambs  S.  Wilcox,  being  duly  sworn,  deposes  and  says : 
Examination  by  W.  F.  Pool,  connsel  for  contestee : 

Question.  What  is  your  name,  age,  residence,  and  occupation  t — Answer.  My  name 
is  James  S.  Wilcox  ;  I  am  thirty-two  years  old;  I  reside  in  Salem  Township,  Pasquo- 
tank County,  North  Carolina;  occupation,  farming. 

Q.  Do  you  know  anything  of  an  election  held  at  Salem  precinct,  Pa.squotank  County, 
North  Carolina,  on  the  tirst  Tuesday  in  November,  1878,  at  which,  among  other  offi- 
cers, a  member  of  Congress  from  the  first  Congressional  district  of  North  Carolina  was 
voted  for  f — A.  I  do.     1  was  present  at  the  election. 

Q.  What  candidates  were  voted  for  at  that  election  for  Congress  from  the  first  dis- 
trict of  North  Carolina? — A.  Jesse  J.  Yeates,  Joseph  J.  Martin,  and  John  B.  Respass. 

Q.  How  many  votes  did  each  of  these  candidates  receive  at  Salem  precinct  at  said 
election  * — A.  Jesse  J.  Yeates  received  twenty-nine  (29),  J.  J.  Martin  received  one 
hundred  and  sixty -four  (164),  and  John  B.  Respass  received  seven  (7)  votes. 

Q.  State  whether  you  were  a  member  of  the  county  canvassing-board  for  the  county 
of  Pasquotank  who  canvassed  the  returns  from  the  several  precincts  in  said  county 
at  said  election. — A.  I  was  registrar  of  the  election  at  Salem  precinct,  and  brought 
the  returns  of  the  election  from  that  precinct  to  the  county  canvassing-board"  of  sai<l 
county  at  the  request  and  by  the  direction  of  the  poll  inspectors  who  conducted  the 
same,  and  claimed  the  right  to  act  as  a  member  of  said  returning-board,  but  by  a  ma- 
jority vote  of  the  board  I  was  not  allowed  to  do  so. 

Q.  Were  you  present  when  said  board  considered  said  returns,  and  do  you  know 
what  action  they  took  in  regard  to  them  T — A.  I  was  present ;  they  proceeded  to  can- 
vass the  returns  from  Salem  precinct,  and  refused  to  count  them. 

Q.  State  whether  the  election  at  Salem  precinct,  at  the  period  aforesaid,  was  fairly 
conducted. 

(The  contestant's  counsel  objects  to  this  question  for  the  reason  that  it  is  not  a 
matter  of  opinion  with  the  witness  as  to  whether  the  election  was  fairly  conducted 
at  said  precinct,  but  how  it  was  conducted.) 

A.  It  was,  so  far  as  I  know. 

Q.  Was  any  legally  qualified  voter  who  offered  to  vote  at  said  election  denied  the 
right  to  d6  so  f 

(The  contestant's  counsel  objects  to  this  question  on  the  ground  that  it  is  a  matter 
of  opinion  with  the  witness.) 

A.  Not  that  I  know  of,  after  the  polls  were  opened  [and  none  could  have  been  re- 
fused before  the  polls  were  opened]. 

(Contestant's  counsel  objects  to  the  latter  part  of  the  answer,  inclosed  in  brackets, 
for  the  reason  that  it  is  a  matter  of  opinion  with  the  witness.) 

Q.  State  whether  there  was  any  intimidation  practiced  iipon  any  voter  at  said  pre- 
cinct at  said  election. — A.  None  that  I  know  of. 

Cross-examination  by  contestant's  counsel : 

Q.  Who  was  the  regularly  appointed  registrar  for  Salem  ]»reciiict  for  said  election  t 

(Contestee's  counsel  objects  to  the  question  on  the  ground  that  the  appointment  of 
a  regular  registrar  is  a  matter  of  record,  and  parol  evidence  is  incompetent  to  prove 
the  same. ) 

A.  I  was  told  that  J,  S.  Lister  was. 

(Contestee's  counsel  objects  to  this  answer  on  the  ground  it  is  hearsay.) 

Q.  Did  you  see  notices  posted  in  Salem  Township,  signed  by  Joshua  S.  Lister  n» 
registrar  for  Salem  precinct,  for  said  election  T 

(Contestee's  connsel  objects  to  this  question  on  the  ground  that  no  answer  the  wit- 
ness could  make  thereto  would  be  competent. ) 

A.  I  did. 

Q.  Do  you  know  that  said  Joshua  S.  Lister  registered  voters  in  said  precinct  for 
said  election  ? 

(Contestee's  counsel  objects  to  this  question  for  irrelevancy.) 

A.  I  do  not. 

4J.  Who  appointed  you  registrar  for  Salem  precinct  for  said  election  ? 


YEATES    VS.    MARTIN.  409 

(Qneetion  objected  to  bv  contestee's   counsel  on  the  I'rouud  of  Incompetencv.) 

A.  F.  M.  Godfrey. 

Q.  When  was  yonr  appointment  as  registrar  for  Salem  precinct  for  said  election 
naade  by  F.  M.  Grodfrey  T 

(Question  objected  to  for  incompetency.) 

A.  On  the  first  Tuesday  in  November — the  day  of  election. 

Q.  At  what  time  on  said  day  of  election  were  thn  polls  opened  at  Salem  precinct  t 

(Contestee's  counsel  objects  to  this  question  on  the  ground  that  the  witness,  having 
already  stated  that  said  election  was  fairly  conducted,  that  oo  intimidation  was  prac- 
ticed, and  that  no  legally  qualitied  vot«r  was  denied  the  right  to  vot«,  that  the  time 
when  the  polls  were  opened  is  immaterial.) 

A.  I  think  it  was  all  of  12  o'clock. 

Q.  State  whether  or  not  persons,  on  the  day  of  said  election,  did  not  go  to  Salem 
precinct  to  vote  before  said  polls  "were  opened  and  after  sunrise  on  said  day,  who  left 
without  voting,  and  did  not  return  to  vote  ;  and.  if  so,  in  your  opinion,  how  many? — 
A.  As  many  as  twenty-five  or  thirty. 

Q.  Were  you  sworn  in  as  registrar  for  Salem  precinct  for  said  election  t 

(Question  objected  to  by  cont^stee's  connsel  on  the  ground  of  immateriality.) 

A.  I  was  not. 

Q.  Were  the  judges  or  inspectors  of  the  election  at  Salem  precinct  for  said  election 
rwom  on  said  day  of  election  ;  and,  if  so,  by  whom  ? 

(Contestee's  counsel  objects  to  this  question  on  the  ground  of  immateriality.) 

A.  They  were  by  me. 

Q.  Were  you  a  magistrate  on  said  day  of  election,  when  you  administered  the  oafk 
to  the  judges  or  inspectors  of  election  at  Salem  precinct  on  said  day  of  election  ? — A. 
I  was  not. 

Q.  Did  you  hold  any  oflBce  at  that  time  which  authorized  yon  to  a<lminister  oaths  f 

(Question  objected  to  by  contestee's  counsel  on  the  ground  that,  witness  having  al- 
ready stated  that  he  was  registrar  at  said  election,  the  question  propounded  is  a  ques- 
tion of  law  and  not  a  question  of  fact.) 

A.  None,  unless  the  appointment  of  Mr.  Godfrey  gave  me  the  authority. 

Redirect  examination : 

Q.  Did  you  hear  the  persons,  of  whom  you  testified  in  your  cross-examination  as 
leaving  Salem  precinct  on  said  day  of  election  and  not  returning  there  to  vote,  exprews- 
themselves  as  to  which  candidate  they  desired  to  vote  fort — A.  I  heard  a  great  many,. 
bnt  cannot  say  I  heard  them  all.  A  majority  of  those  whom  I  did  hear  express  them- 
selves on  the  subject  said  that  they  desired  to  vote  for  J.  J.  Martin.  I  only  heard  one 
of  the  class  named  say  that  he  desired  to  vote  for  J.  J.  Yeat€s,  the  contestant.  I  heard 
six  of  them  say  that  they  desired  to  vote  for  J.  J.  Martin. 

Q.  From  what  you  saw  and  heard  at  said  election,  which-  candidate  lost  the  larger 
number  of  votes  on  the  account  of  the  late  hour  when  the  polls  were  openetl  t — A.  In 
my  opinion,  J.  J.  Martin. 

Q.  Was  F.  M.  Godfrey,  who  you  say  appointed  you  registrar  at  said  election,  a  jus- 
tice of  the  peace  in  Salem  Township  t  and  if  there  were  other  justices  of  the  peace  in 
said  township,  state  how  many  and  their  names. — A.  F.  M.  Godfrey  signed  the  appoint- 
ment of  mysef  as  registrar  of  election  as  justice  of  the  peace  in  and  for  Salem  Town- 
ship, and  was  so  recognized.  There  was  two  others  at  that  time  so  recognized — J.  8. 
Lister  and  W.  L.  Davis. 

Q.  You  stated  in  your  cross-examination  that  yon  were  appointed  as  registrar  on  the 
day  of  election.  Please  state  the  circumstances  under  w^hich  you  were  appointed. — A. 
About  half-past  10  or  11  o'clock  the  registration  book  of  Salem  precinct  was  sent 
to  the  precinct  with  a  message  from  J.  S.  Lister,  stating  that  he  was  sick  and  that  it 
was  impossible  for  hun  to  attend  on  that  day.  I  took  my  horse  and  went  to  F.  M. 
Gfodfrey's,  the  nearest  magistrate,  with  Mr.  Lister's  statement,  and  thereupon  said 
Godfrey  appointed  me  registrar  for  said  election  ;  and  as  soon  as  Mr.  Godfrrv  made 
the  appointment  I  immediately  returned  and  opened  the  polls. 

(Question  and  answer  objected  to  by  contestant's  counsel  on  the  ground  of  incom- 
petency and  irrelevancy.) 

Recross-examinatiom 

Q.  State  what  is  the  respective  Democratic  and  Republican  vote  usually  cast  at 

Salem  precinct. 

(Question  objected  to  by  counsel  for  contestee  on  the  ground  of  irrelevancy.) 

A.  I  don't  think  that  1  can  answer  correctly  the  question. 

Q.  Is  not  the  usual  Democratic  vote  at  Salem  precinct  one  hundred  or  more  1 

(Question  objected  to  by  contestee's  counsel  on  the  ground  of  irrelevancy.) 

A.  I  think  it  averaged  from  eighty  to  one  hundred  up  to  the  August  election  at 

1878. 


410  DIGEST    OF    ELECTION    CASES.     • 

Q.  Was  not  your  api>ointment  as  registrar  for  Stilem  precinct  by  F.  M.  Godfrey 
luade  at  your  request  f — A.  It  was  not. 

Q.  Have  you  not  held  oflSce  in  Pasquotank  County ;  if  so,  what  oflSce,  and  by  what 
political  party  were  you  elected? 

(Q'.iestion  objected  to  by  contestee's  counsel  on  the  ground  of  irrelevancy,  and  on 
•the  further  fjround  that  it  is  not  in  rebuttal  of  anything  called  out  iu  the  redirect  ex- 
jimiiiation. )  , 

A.  I  was  mayor  of  Elizabeth  City  for  the  year  187(j;  wius  nominated  by  the  Repub- 
lican party  and  elected  by  the  votes  of  both  parties.  I  was  county  commissioner  for 
two  years,  from  about  1872  to  1874.  I  was  nominated  by  the  Republican  party  and 
was  elected  by  the  votes  of  both  parties.  I  was  a  justice  of  the  peace  from  aboufc 
1872  to  1874,  or  about  that  tiuie,  by  appointment  of  clerk  of  the  superior  court  to  fill 
a  vacancy,  I  was  elected  a  justice  of  the  peace  by  both  parties  soon  after  reconstruc- 
tion, la  1875  I  was  appointed  by  the  county  commissioners  sheriff  of  the  county  to 
fill  the  vacancy  of  John  T.  Price,  sheriff,  and  1876  I  was  nominated  by  the  Repub- 
lican party  for  sheriff  of  the  county  and  was  elected. 

Q.  For  whom  did  you  vote  for  Congress  at  the  November  election,  1878  f — A.  I  voted 
for  Joseph  J.  Martin. 

Direct  examination  resumed : 
Q.  What  is  the  usual  majority  of  the  Republicans  at  Salem  preciuct  1 — A.  Fromoao 
Tlundred  to  one  hundred  and  fifty. 

The  witness,  James  S.  VV^ilcox,  desires  to  make  the  following  corrections  : 
Upon  reflection  and  examinatiim  of  the  records  of  the  court,  there  were  but  two 
-magistrates  in  Salem  Township  on  the  day  of  said  election,  instead  of  three,  as  stated. 
And  one  of  the  six  men,  as  stated,  going  away  without  voting,.he  believes,  afterwards 
*Bturned  and  voted. 

JAMES  S.  WILCOX. 

Sworn  and  subscribed  to  before  me,  having  first  been  read  over  to  the  witness,  this 
the  8th  day  of  November,  A.  D.  1879. 

MILES  COMMANDER, 
Clerk  Superior  Courl  I'axquotank  County 
and  er  officio  Xolory  Vuhlio. 

Deposition  of  J.  S.  Lister. 

J.  S.  I^ISTER,  being  duly  sworn,  deposes  and  says,  in  answer  to  interrogatoriea,  aa 
fellows  : 

By  counsel  for  coutestee  : 

Question.  State  your  name,  age,  residence,  and  occupation. — Answer.  My  name  is 
-Joshua  S.  Lister;  my  age  is  forty-two  years;  residence,  Salem  Township,  Pasquotsmk 
County,  North  Carolina  ;  occni)ation,  merchant  and  farmer. 

Q.  State  what  connection,  if  any,  you  had  with  the  election  held  at  Salem  precinct, 
Pasquotank  County,  on  the  first  Tuesday  in  Novel  jber,  1878,  and  state  such  facts  a» 
are  within  your  knowledge  in  regard  to  the  same. — A.  1  was  appointed  registrar  for 
that  j)recinct.  1  registered  the  voters  within  the  time  pre^scribed  by  law.  I  was  sick 
•n  the  morning  of  the  election  and  unable  to  attend  to  any  official  business,  and  I  sent 
the  registration  book  by  the  first  trustworthy  party  that  I  saw  to  the  l^alem  polling 
place  at  about  half  an  hour  or  an  hour  after  sunrise.  I  sent  the  book  by  John  Swain, 
er.,  and  knowing  that  his  teani  wa*i  slow,  directed  him  if  he  saw  any  one  going  fastiM" 
than  he  could  to  place  it  in  their  hands  to  be  delivered  to  Mr.  Godfrey.  I  lived  six 
miles  from  the  polling  place. 

(Question  and  answer  objected  to  by  contestant's  counsel  on  the  ground  of  In-ele- 
vancy.) 

Q.  Do  you  know  who  was  appointed  as  registrar  in  your  place,  if  any  one  was  (M> 
app<»iuted? — A.  I  think  J.  S.  Wilcox  was. 

(Question  and  answer  objected  to  by  contestant's  counsel  on  the  ground  of  irrele- 
Tancy.) 

Q.  Was  the  appointment  of  James  S.  Wilcox  as  registrar  satisfactory  to  you,  aad 
did  it  meet  with  your  approval? — A.  I  would  have  acquiesced  iu  any  appointment 
Mr.  Godfrey  made  ;  this  ap]>ointmeut  was  satisfactory  to  me. 

(Question  and  answer  objected  to  by  contestant's  counsel  ou  the  ground  of  incom- 
petency and  irrelevancy.) 

Q.  Do  you  know  the  number  of  justices  of  the  peace  in  Salem  Township  at  the 
•time  of  said  election  ?  If  so,  please  give  the  number  and  names. — A.  There  were  two, 
F.  M.  Godfrey  and  myself. 


YEATES    VS.    MARTIN.  411 

Crostt-exarainatiou  : 

Q.  Did  you  direct  Mr.  Godfrey  to  appoint  J.  S.  Wilcox  registrar  for  Salem  precinct 
for  said  clt'ction,  or  difl  yoa  take  any  part  in  bis  appointment  ? — A.  No. 

(QnestiiMi  and  answer  objected  to  by  cont-est^e'a  counsel  on  the  ground  of  immate- 
riality.) 
•  Q.  What  is  the  usnal  Democratic  vote  of  Salem  precinct  f 

(Question  objected  to  by  contestee's  counsel  on  the  grounds  of  incompetency,  irrele- 
vancy, ami  that  it  is  nut  in  rebuttal  of  anything  brought  out  on  the  direct  oxaniina- 
t'ion.) 

A.  1  do  not  know. 

Q.  What  is  the  usual  Republican  majority  at  Salem  i>recinct  in  said,  county? — A.  I 
don't  remember. 

Q.  Do  you  remember  whether  the  Republican  majority  ever  rnn  up  to  one  hun- 
dred ? — A.  I  do  not. 

Q.  Whit  was  tlie  vot4«  for  Congress  in  1876  at  Salem  precinct  for  J.  J.  Teates,  Dem- 
ocrat, and  McD.  Lindsey,  Republican  f 

(Question  objected  to  by  contestee's  counsel  on  the  ground  of  irrelevancy.) 

A.  Ir  .ippears  from  the  paper  which  I  hold  in  my  hand,  purportingto  be  thereturiw 
from  yalem  Township,  that  Jesee  J.  Yeates  received  IXJ  votes  and  D.  McD.  Lindsef 
received  201. 

Q.  From  the  same  paper  which  you  hold  in  your  hand,  from  which  the  vote  of 
Yeates  and  Lindscy  is  tak'ti,  what  is  the  vote  of  the  Republican  and  Democratic 
Presidential  electors,  respectively,  at  Salem  precinct! 

(Question  objected  to  by  contestee's  counsel  on  the  ground  of  irrelevancy  and  in- 
competency.) 

A.  Tlie  Republican  electors  received  217  and  the  Democratic  electors  1:57  votes. 

Q.  fl.ive  yon  any  doubt  from  the  signatures  to  the  ]»aper  which  you  hold  in  yoor 
h.and,  tliat  it  is  the  genuine  returns  from  Salem  precinct  for  1876? 

(Qu'stiou  objected  to  by  coutest«e's  counsel  on  the  ground  of  incompetency.) 

A.   I  have  no  doubt  that  this  is  the  correct  return. 

J.  S.  LISTER. 

This  testimony  shows  that  the  polls  were  not  opened  until  12  o'clock 
m. ;  that  J.  S.  Lister  was  the  regularly  appointed  registrar ;  that  he  was 
sick  on  the  morning  of  election,  and  that  he  sent  the  registration  books 
by  the  first  trustworthy  person  he  saw  about  half  an  hour  or  an  hour 
after  sunrise  to  the  Salem  polling  place,  with  directions  that  they  be 
delivered  to  Mr.  Godfrey;  that  about  half- past  10  or  11  o'clock  the 
registration  books  were  received,  with  the  message  that  Lister  was  sick 
and  unable  to  attend,  whereupon  Mr.  Wilcox,  who  appears  to  have  been 
elected  sheriff  in  187<),  took  his  horse  and  went  to  Mr.  (xodfrey's,  the 
nearest  magistrate,  with  Mr.  Lister's  statement,  and  thereupon  Godfrey 
appointed  Wilcox  registrar  for  said  election,  and  Wilcox  returned  imme- 
diately and  opened  the  polls  ;  that  he  was  not  sworn  a«  registrar ;  that 
the  judges  and  inspectors  were  sworn  by  him,  but  that  he  had  no  au- 
thority to  administer  an  oath,  unless  this  api)ointment  as  registrar  gave 
him  such  authority ;  that  the  number  of  magistrates  in  Salem  Town- 
ship on  the  day  of  election  was  two,  Mr.  Godfrey  and  Mr.  Lister;  that 
Mr.  Lister  did  not  direct  Godfrey  to  appoint  Wilcox  registrar,  but  that 
he  would  have  acquiesced  in  any  appointmeut  Mr.  Godfrey  made,  and 
that  the  appointment  of  Wilcox  was  satisfactory  to  him;  that  as  many 
as  twenty  five  or  thirty  persons  left  the  precinct  before  the  polls  were 
opened,  and  did  not  vote;  and  that,  in  the  opinion  of  the  witness,  niore 
of  these  would  have  voted  for  Martin  than  for  Yeates ;  and  that  other- 
wise the  election  was  fairly  conducted ;  and  that  no  legally  qualified 
voter  who  offered  to  vote  was  denied  the  right  to  do  so  ;  and  that  the 
result  of  the  August  elections  for  solicitor  is,  Democratic  vote,  .'iO;  Re- 
publican vote,  2iJI ;  for  two  State  senators,  Democratic,  oQ  and  58,  re- 
spectively ;  Republican,  261  and  261,  respectively  (page  92).  In  the 
election  in  November,  Yeates  received  29;  Martin,  164;  Respass,  7 
votes. 

For  reasons  hereinbefore  stated,  the  fact  that  the  polls  were  not 


412  DIGEST  OF  ELECTION  CASES. 

opened  until  12  o'clock  does  not  invalidate  the  election  ;  and  that  as  it 
was  the  duty  of  the  voters  to  remain  until  the  board  of  election  officers 
was  filled,  in  the  absence  of  any  evidence  that  the  attempt  to  hold  the 
election  was  abandoned,  no  credit  can  be  given  to  eitner  candidate  for 
those  voters  who  left  and  did  not  vote.  Indeed,  it  is  impossible  to  de- 
termine for  whom  thej'  would  have  voted,  but  one  witness,  thinks  that 
a  majority  were  for  Martin.  A  comparison  of  the  votes  cast  at  this 
election,  at  which  the  only  officer  voted  for  whs  a. Representative  in 
Congress,  with  the  August  election,  when  the  State  officers  were  voted 
for,  cannot  properly  be  considered  for  the  purpose  of  correcting  its  poll. 
The  registrar  was  appointed  by  one  justice  of  the  peace,  and  not  by  two, 
and  acted  under  this  appointment,  and  must  be  taken  to  be  a  de  facto 
officer.  The  inference  is  that  the  judges  were  the  regularly  appointed 
judges,  and  were  sworn  by  the  registrar,  who,  so  far  as  appears,  was 
not  authorized  to  administer  an  oath.  The  fact  that  they  were  not 
sworn  does  not  invalidate  the  election.  No  doubt  is  suggested  that  the 
votes  were  actually  cast  as  returned.  We  think  that  the  votes  cast  at 
this  election  should  be  counted  for  the  candidates  for  whom  they  were 
cast. 

MERRY  MILL   PRECINCT. 

One  hundred  and  eight  votes  for  Mr.  Martin  were  thrown  out  and  not 
counted,  because  they  had  on  them  the  words  "Republican  ticket"  at 
or  near  the  head  of  the  ticket,  on  the  same  side  as  the  name  of  the  can- 
didate and  office.  They  were  thrown  out  on  the  ground  that  the  words 
"Republican  ticket"  were  a  device  within  the  meauing  of  the  laws  of 
North  Carolina.  Mr.  Martin  contends  that  these  ballots  should  be 
counted  for  him.  The  ballots  were  procured  to  be  printed  in  this  form 
by  a  Mr.  James  B.  Martin,  "  an  active  Democratic  politician,"  and  an 
active  supporter  of  Mr.  Yeates  (Record,  page  79),  although  Mr.  Yeates 
had  nothing  to  do  with  it. 

Section  18,  chapter  275,  of  the  Laws  of  North  Carolina,  1877,  pro- 
vides— 

*  *  *  The  ballots  shall  be  on  white  paper  aud  may  be  printed  or  written,  or  partly 
written  and  partly  printed,  and  shall  be  without  device. 

Sec.  20.  "When  the  election  shall  be  finished  the  registrars  and  judges  of  election, 
in  presence  of  such  of  the  electors  as  may  choose  to  attend,  shall  open  the  boxes  and 
count  the  ballots,  reading  aloud  the  names  of  the  persons  who  shall  appear  on  each 
ticket ;  and  if  there  shall  be  two  or  more  tickets  rolled  up  together,  or  any  ticket  shall 
contain  the  names  of  more  persons  than  such  elector  has  a  right  to  vote  for,  or  shall 
have  a  device  upon  it,  in  either  of  these  cases  such  tickets  shall  not  be  numbered  in 
taking  the  ballots,  \mt  shall  be  void,  and  the  said  counting  of  votes  shall  be  continued 
without  adjournment  until  completed  and  the  result  thereof  declared. 

These  votes  were  rejected  b^'  the  State  authorities  and  are  not  included 
in  Mr.  Martin's  returned  plurality.  We  l*^ave  to  the  consideration  of 
the  House  whether  these  votes  should  now  be  counted  for  Mr.  Martin 
or  not. 

'  GOOSE  NEST  PRECINCT. 

The  contestee  claims  that  one  hundred  and  thirty-nine  votes  should  be 
counted  for  him  that  were  not  received  at  this  precinct.  The  vote  as  re- 
ceived and  counted  at  this  precinct  was,  for  Yeates,  184  ;  for  Martin,  52 
(page  77,  Record).  Prior  to  September,  1876,  Goose  Nest  precinct  and 
Hamilton  precinct  were  separate  precincts  in  the  same  township.  Sep- 
tember 4,  1876,  Goose  Nest  precinct  was  abolished  and  the  names  of  its 


YEATE8    VS.    MARTIN.  413 

registered  electors  traus^ferred  to  the  registration  books  of  Hamilton 
precinct.  From  that  time  up  to  August  5, 1878,  all  the  electors  of  Ham- 
ilton townshi]*  were  required  to  be  registered  and  to  vote  at  Hamilton 
precinct.  On  the  5th  day  of  August,  1878,  the  precinct  of  Goose  Nest 
was  reestablished  and  a  registrar  for  Goose  Nest  appointed,  who  was 
required  to  transfer  from  the  registration  books  of  -Hamilton  precinct 
the  names  of  such  registered  electors  as  were  then  resident  in  Goose 
Nest  precinct,  which  he  did.     (See  Kecord,  page  69.) 

This  was  done  under  the  sixth  and  seventh  sections  of  the  election 
laws  of  Nortl)  Carolina,  approved  March  12,  1877,  which  are  in  these 
words,  to  wit : 

Sec.  6.  Registrars  shiill  be  furnished  with  a  registration  book,  aud  it  shall  be  their 
duty  to  revise  the  existing  registration  books  of  their  precinct  or  township  in  such 
n  manner  that  said  books  shall  show  an  accurate  list  of  electors  previously  registered 
in  such  precinctortownshi]*,  and  still  residing  therein,  without  requiring  sucii  elect- 
ors to  be  registered  anew,  &c.,  «Jtc. 

Skc.  7.  No  elector  shall  be  entitled  to  register  or  vote  in  any  other  precinct  or  town- 
ship than  the  one  in  which  he  is  an  actual  and  bona  fide  resident  on  the  day  of  elec- 
tion, and  no  certificate  of  registration  shall  be  given. 

The  registration  book  for  Goose  Nest  precinct  having  been  prepared 
in  this  way,  the  judges  of  election  met  on  the  afternoon  of  the  day  ])re- 
ceding  the  election  for  members  of  Congress,  when  their  attention  was 
called  to  the  twelfth  section  of  the  North  Carolina  election  laws,  which 
is  in  these  words,  to  wit : 

Sec.  12.  Every  person  who  shall  present  himself  for  registration  shall  state,  under 
'«>ath,  how  long  he  has  continuously  resided  in  this  State,  and  in  the  county  in  which 
he  others  to  vote,  whether  he  is  an  alien  or  native-born,  when  he  became  twenty-one 
years  of  age,  vfhether  married  or  single,  and  where  and  with  whom  he  resides.  Upon 
the  request  of  an  elector  the  registrar  shall  require  the  applicant  to  prove  his  identity, 
or  age,  and  residence,  by  the  testimony  of  at  least  one  elector,  under  oath.  And  if 
-an  elector  has  previously  been  admitted  to  registration  in  any  ward,  township,  or 
precinct  in  the  county  in  which  he  resides,  he  shall  not  be  allowed  to  register  again 
in  another  ward,  precinct,  or  township  in  the  same  county  until  he  produces  a  certifi- 
cate of  the  registrar  of  the  former  township,  ward,  or  precinct,  that  said  elector  haa 
removed  from  said  township,  ward,  or  precinct,  and  that  his  name  has  been  erased 
from  the  registration  books  of  the  ward,  township,  or  precinct  from  which  he  has  re- 
moved ;  and  the  identity  of  any  person  claiming  the  right  to  be  registered  in  any  pre- 
cinct of  the  same  county,  by  virtue  of  such  certificate,  with  the  person  named  therein, 
«hall  be  proved  by  the  oath  of  the  claimant,  and,  when  required  by  the  registrar, 
by  the  oath  of  at  least  one  other  elector.     Every  person  found  qualified  shall  take 

the  following  oath  :  "  I, ,  do  solemnly  swear  (or  affirm)  that  I  will  support  the 

<Joiistitution  of  the  United  States  and  the  constitution  of  the  State  of  North  Carolina  ; 
that  I  have  been  a  resident  of  the  State  of  N«»rth  Carolina  for  twelve  mouths,  and  of 

the  county  of for  ninety  days;  that  I  am  a  duly  qualified  elector,  and  that  I 

have  not  registered  forthiselectiou  in  any  other  precinct,  and  that  I  am  an  actual  and 

bona  fide  resident  of township  (or  precinct) ;  so  help  me  God."    Aud,  thereupon, 

said  person  shall  be  iiermitted  to  register,  and  the  date  of  his  registration  shall  be 
noted  opposite  his  name  in  the  registration  book. 

The  judges  of  election  thereupon  decided  that,  under  section  12,  no 
elector  whose  name  had  been  transferred  to  the  (xoose  Nest  registra- 
tion book  should  be  allowed  to  vote  on  the  next  day,  unless  he  should 
I)ro(luce  a  certificate  that  his  name  had  been  erased  from  the  Hamilton 
book. 

And  on  the  next  day  they  refused  the  votes  on  this  ground  of  a  cer- 
tain number  of  persons  ;  Johnson  says  of  154,  and  he  gave  a  list  of  160 
names,  six  of  whom  he  says  were  allowed  to  vote  (page  75,  Record)  ; 
Lamb,  page  78,  testifies  that  he  finds  all  the  names  on  the  list  on  the 
registration  books  of  Goose  Nest  precinct  marked  challenged  and  rc*jected 
except  thirteen,  one  of  whom  voted,  and  that  he  finds  all  these  names 
on  the  registration  book  of  Hamilton  precinct  except  21.  As  these  21 
may  not  include  the  13  names  of  the  list  on  the  Goose  Nest  books,  it  is 


414  DIGEST    OF    ELECTION    CASES. 

neccessary  to  deduct  the  sum  of  131  and  13,  to  wit,  34  from  154,  leaving 
120  names,  which  must  have  been  on  the  registration  books  of  both 
Goose  Nest  and  Hamilton  precincts, and  which  were  marked cliallenge^l 
and  rejected  on  the  registration  book  of  Goose  Nest  precinct.  Johnson 
swears  that  these  all  tendered  votes  for  Martin  as  Representative,  and 
were  rejected  on  the  ground  that  they  did  not  produce  a  certificate  that 
their  names  had  been  erased  from  the  registration  books  of  Hamilton 
precinct,  and  this  is  confirmed  by  other  witnesses.  «'  1  jOU^lO 

On  the  night  preceding  the  election,  and  after  the  judges  at  Goose 
Nest  had  rendered  their  above  decision,  J.  T.  Hyman,  a  Democrat,  the 
registrar  at  Goose  Nest,  in  company  with  one  J.  T.  Weldo,  the  i)erson 
who  had  called  the  attention  of  the  judges  to  the  said  twelfth  section, 
and  one  Boyle,  went  to  Hamilton  precinct  and  asked  the  Hamilton 
registrar  to  issue  the  required  certificates  of  erasure  to  a  number  of 
electors,  most  of  whose  names  were  upon  a  list  presented  by  them,  com- 
prising between  one  and  two  hundred  names,  for  which  electors  the 
required  certificates  were  issued  by  the  Hamilton  registrar,  taking  until 
about  10  o'clock  that  night  to  get  through  the  list.  Besides  these, 
about  a  dozen  electors  applie<lin  person  for  such  certificates  and  obtained 
them.  Hyiiiian,  the  registrar  at  Goose  Nest,  before  12  o'clock  that  night, 
marked  the  word  "  certificate"  opposite  the  names  of  the  above-named 
electors  in  his  registration  book,  and  opposite  the  names  of  the  other 
electors,  w  hose  names  had  been  transferred  to  liis  book  from  the  Ham- 
ilton book,  he  placed  a  cross  mark.  Tliose  whose  names  were  marked 
opposite  with  the  word  ''certificate  **  were  allowed  to  vote  next  day,  and 
those  marked  with  a  cross  were  refused,  singly,  as  each  presented  his 
ballot.  , 

The  electors  so  refused  their  votes  then  applied  on  election  day, 
through  one  W.  A.  Johnson,  an  elector,  to  the  registrar  of  Hamilton 
precinct  for  the  certificates  required,  and  the  said  registrar  refused  to 
give  them  the  certificates  (page  75). 

These  electors  were  the  same  persons  who  had  tendered  their  votes 
for  Martin  as  Representative  in  Congress. 

Upon  this  state  of  facts  the  contestee  contends  that  he  is  entitled  to 
have  counted  for  him  the  votes  thus  ottered  and  illegally  refused  ;  or, 
to  have  rejected  the  132  majority  already  counted  for  the  contestant  at 
this  precinct  on  these  grounds : 

I.  Unless  the  transfer  of  the  names  of  electors  at  this  precinct  from  the  registration 
^ook  of  Hamilton  to  the  I'egistratiou  book  of  Goose  Nest  was  valid  as  a  registration 
without  -Auy  peraonal  act  on  the  part  of  electors,  no  one  of  these  electors  was  legally 
registered  at  the  precinct;  for  it  is  not  in  evidence  that  any  one  applied  in  person  to 
be  registered  and  took  the  required  oath.  The  fact  that  an  oath  is  recjnired  as  a  pre- 
requisite to  registration  makes  registration  a  personal  act,  which  cannot  be  perfurmed 
by  proxy.  If,  as  contended  by  contestant,  a  certificate  of  removal  of  residence  from 
Hamilton  precinct  and  erasure  from  the  registration  book  of  that  precinct  was  a  pre- 
requisite to  registration  in  Goose  Nest  precinct,  then,  under  section  12  of  the  North 
Carolina  election  law,  such  certificate  was  required  to  be  presented  in  person  previous 
to  registration  anew  at  Goo«e  Nej»t;  and  the  law  expressly  requires  that  such  pres- 
entation shall  be  accompanied  with  the  oath  of  the  elector  that  he  is  the  identical 
person  named  in  the  certificate,  and  also  by  the  general  oath  set  forth  in  section  12. 
It  is  not  pretended  that  any  of  the  electors  for  wliom  such  certificates  were  taken  out 
presented  them  in  person  or  took  the  re«iuired  oaths.  Indeed,  the  contrary  appears. 
(See  Record,  page  71.)  And  it  does  not  appearthat  those  for  whom  certificates  were 
taken  out  by  proxy  either  authorized  tlie  application  for  them  or  even  knew  tliar,  the 
certificates  had  been  applied  for  or  taken  out  for  them  until  informed  of  the  tact  at 
the  polls. 

II.  If  such  certificates  were  a  prerequisite  to  registration,  then  the  grauting^of 
them  on  the  day  of  election  would  have  entitled  the  holders  to  register  on  that  day, 
because  they  would  in  that  case  "become  on  that  day  entitled  to  register,"  as  re- 
quired in  the  thirteenth  section  of  the  election  laws  of  North  Carolina. 


YEATES   VS.    MARTIN.  415 

III.^  The  application  for  theec  certificates,  made  for  these  electors  on  the  day  of 
eleotion,  and  lefused,  was  a  complete  compliance,  on  their  part,  with  the  requirements 
of  the  law  as  interpreted  by  the  judges  of  election,  and  entitled  them  to  vot<^  as  fully 
aa  if  the  certificates  hiul  been  granted  and  they  duly  registered.  See  act  of  May  31, 
IWO,  sec.  3  (U.  S.  Statutes  at  Large,  vol.  17,  p.  140)." 

IV.  But  really  these  certificates  were  not  necess-ary  at  all,  and  they  were  not  even 
authorized  to  be  issued  under  the  twelfth  section  of  the  North  Carolina  electicm  law. 
It  is  evident  that  the  twelfth  section  was  meant  only  for  such  electors  as  should  change 
f/k^ir  re>(i<tpncfl  from  one  township  or  i)recinct  to  another;  and  therefore  has  no  refer- 
ence to  the  case  in  hand,  where  none  of  the  electors  in  question  had  changt'<l  their 
residence.  This  is  plain  from  the  fact  that  each  certificate  is  required  to  state  that 
**the  elector  has  removed  from  Ihe  said  township  or  precinct."  It  is  still  ]>lainer 
from  the  fact  that  such  certificates  were  only  for  the  purpose  of  enabling  registered 
voters  who  had  removed  "to  register  again  in  another  ward,  precinct,  or  township." 
Bat  their  registration  at  Goose  Nest  had  already  been  completed  under  se*'.  «j  of  the 
North  Carolina  law,  the  proceeding  under  which  section  is  declared  to  be  for  the  ex- 
press pni-pose  of  not  "requiring  such  electors  to  be  registered  anew." 

We  think  the  last  ground  at  least  is  well  taken,  and  that  the  statute 
so  far  as  a  certificate  is  concerned  has  no  application  to  such  a  case  aa 
this  is.  The  certificate  required  is  "  a  certificate  of  the  registrar  of  the 
former  township,  ward,  or  precinct  that  said  elector  has  removed  from 
said  township,  ward,  or  precinct,  and  that  his  name  has  been  erased 
from  the  registration  books  of  the  ward,  township,  or  precinct  from 
which  he  has  removed.""  None  of  these  electors  whose  votes  were  re- 
fused had  removed  from  any  precinct,  but  by  the  re-establishment  of 
Goose  Nest  precinct,  without  any  removal  on  their  part,  they  became 
resident  in  that  precinct,  and  as  the  registrar  had  properly  put  their 
names  on  the  registration  books  of  Goose  Nest  pursuant  to  section  6  of 
the  act  of  March  12,  1877,  we  think  their  votes  should  have  been  re- 
ceived, and  having  been  illegally  rejected  should  now  be  counted,  and 
we  find  the  number  to  have  been  at  least  120,  which  should  be  added  to 
Mr.  Martin's  vote. 

RESULT. 

Martin's  returned  plurality - 51 

Add  plurality  for  Marti  n  in  Salem  precinct,  not  counted 135 

Add  votes  rejected  in  Goose  Nest  precinct,  at  least 120 

SOS 
Bnbtract  Yeates's  plurality  in  Providence  Township,  not  counted 3& 

Martin's  plurality 267 

If  to  this  is  added  the  votes  cast  for  Mr.  Martin  in  Merry  Hill  pre- 
cinct, and  rejected,  to  wit,  108,  the  plurality  of  Mr.  Martin  is  375. 
We  recommend  the  passage  of  tbe  following  resolutions : 
Resolved.,  That  Joseph  J.  Martin,  the  sitting  member,  is  entitled  to 
his  seat  in  this  House  as  a  Representative  in  the  Forty-sixth  Congress 
from  the  first  Congressional  district  of  North  Carolina. 

Resolved.,  That  Je.sse  J.  Yeates  is  not  entitled  to  a  seat  in  this  House 
as  a  Representative  in  the  Forty-sixth  Congress  from  the  first  Congres- 
sional district  of  North  Carolina. 

W.  A.  FIELD. 

J.  WARREN  KEIFER. 

J.  H.  CAMP. 

E.  OVERTON,  Je. 

W.  H.  CALKINS. 


416  DIGEST    OF    ELECTION    CASES. 


ANDREW  G.  CURTIN  vs.  8BTH  H.  YOCUM. 

Twentieth  Congressional  District  of  Pennsylvania. 

The  principal  question  iu  this  case  is  whether  all  the  clauses  in  the  new  coustitution 
and  laws  of  Pennsylvania  relating  to  "  suffrage  and  elections,"  and  especially 
those  prescribing  the  qualitications  of  electors,  are  mandatory,  and  therefore  not 
to  be  deviated  from  in  any  particular,  or  whether  some  of  them  are  mandatory 
and  others  directory  merely 

Held,  That  the  provisions  of  tlie  constitution  (Pennsylvania)  relating  to  the  registry 
of  voters  is  not  mandatory  in  so  far  as  it  affects  the  right  of  a  non-registered  voter 
to  vote,  if  he  is  otherwise  qualirted,  the  constitution  providing :  "  But  no  elector 
shall  be  deprived  of  the  privilege  of  voting  by  reason  of  his  name  not  being-reg- 
istered. " 

Held,  That  the  election  law  requiring  a  qualified  elector  to  produce  his  own  affidavit 
and  that  of  a  voter  of  his  election  district  to  his  qualifications  is  directory  merely. 
If  the  elector  refuses  to  comply  on  being  requested,  the  vote  should  be  refused, 
because  he  refuses  to  obey  a  reasonable  regulation,  and  he  hurts  no  one  but  him- 
self. But  if  he  is  allowed  to  vote  without  being  required  to  tile  the  affidavits, 
and  is  otherwise  qualified,  his  vote  is  not  an  illegal  one. 

Held,  That  where  the  law  requires  several  acts  to  be  done  by  the  officers  of  election, 
as  (1)  to  ascertain  whether  a  party  offering  to  vote  was  registered ;  if  he  was  not, 
(2)  to  require  an  affidavit  of  himself  and  a  registered  voter  ;  (3)  to  see  tlyit  it  w»s 
subscribed  and  sworn ;  and  (4)  to  keep  it  till  the  election  was  over,  and  then  re- 
turn it  to  the  prothonotary's  office  with  certain  other  papers,  and  the  last  act  wa« 
not  performed,  does  not  show  that  the  rest  were  left  undone,  nor  must  they  be  pre- 
sumed not  to  have  required  the  affidavits  at  all. 

The  House  adopted  the  minority  report  May  11,  1880. 


Mr.  Calkins  submitted  the  following  as  the 

VIEWS    OF    THE    MINORITY: 

It  was  admitted  in  argument  in  this  case  that  one  of  the  controlling 
questions  is  whether  all  the  clauses  in  the  new  constitution  and  laws 
of  Pennsylvania  relating  to  -'  suffrage  and  elections,"  and  especially 
those  prescribing  the  qualifications  of  electors,  are  mandatory,  and  there- 
fore not  to  be  deviated  from  in  any  particular,  or  whether  some  of  them 
are  mandatory  and  others  directory  merely. 

The  qualifications  under  the  constitution  are — 

Article  VIII. 

Skction  1.  Every  male  citizen  twenty-one  years  of"  age,  possessing  the  following 
qualifications,  shall  be  entitled  to  vote  at  all  elections: 

First.   He  shall  have  been  a  citizen  of  the  United  States  at  least  one  month. 

Second.  He  shall  have  resided  in  the  State  one  year  (or  if,  having  previously  been 
a  qualified  elector  or  native-born  citizen  of  the  State,  he  shall  have  removed  therefrom 
and  returned,  then  six  months)  immediately  preceding  the  election,  ; 

Third.  He  shall  have  resided  in  the  election  district  where  he  shall  offer  to  vote  at 
least  two  months  immediately  preceding  the  election. 

Fourth.  If  twenty-two  years  of  age  or  upwards,  he  shall  have  paid  within  two  yean 


CUETIN   VS.   YOCUM.  417 

a  State  and  county  tax,  which  shall  have  been  assessed  at  least  two  months  and  paid 
at  least  one  month  before  the  election. 

These  are  the  qualitications  of  voters  as  determined  and  fixed  in  the 
orjjanic  law  of  Pennsylvania,  and  are  not  in  conflict  with  section  2,  ar- 
ticle 1,  of  the  Constitution  of  the  United  States,  which  provides  that — 

i^^  The  House  of  Representatives  shall  be  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  States;  and  the  electors  in  each  State  shall  have  the 
qnalifications  requisite  for  the  most  numerous  branch  of  the  State  legislature. 

It  will  be  seen  that  these  qualifications  are  five  in  number,  and  all 
pertain  to  the  person  of  the  voter. 

They  are  personal  qualifications,  namely:  First,  age;  second.  United 
States  citizenship;  third,  State  residence;  fourth,  election  district  or 
precincjt  residence;  fifth,  payment  of  taxes. 

We  are  free  to  admit  that  no  person  is  a  qualified  voter  who  does  not 
combine  in  himself  all  these  prerequisites;  that  the  provisions  of  the 
constitution  in  relation  thereto  are  imperative,  and  are  not  to  be  de- 
parted from.  As  no  question  which  can  affect  the  result  in  this  case 
arises  under  any  of  these  clauses,  we  pass  to  another  question,  which  is 
more  difficult  to  solve,  and  one  not  free  from  conflict  and  doubt.  It  is 
this :  Are  the  constitution  and  laws  of  Pennsylvania  on  the  subject  of 
registration  imperative  and  mandatory  ?  The  constitutional  provision 
is  as  follows : 

Articlk  VIII.  * 

t 

Sec.  4.  All  elections  by  the  citizens  shall  be  by  ballot.  Every  ballot  voted  shall 
be  numbered  In  the  order  in  which  it  shall  be  received,  and  the  number  recorded  by 
the  election  officers  on  the  list  of  voters,  opposite  the  name  of  the  elector  who  pre- 
sents the  ballot..  Any  elector  may  write  his  name  upon  his  ticket,  or  cause  the  same 
to  be  written  thereon,  and  attested  by  a  citizen  of  the  district.  The  election  officers 
shall  be  sworn  or  affirmed  not  to  disclose  how  any  elector  shall  have  voted,  unless  re- 
quired to  do  so  as  a  witness  in  a  judicial  proceeding. 

Sec.  1.  All  laws  regulating  the  holding  of  elections  by  the  citizens,  or  for  the  regis- 
tration of  electors,  shall  be  nuiform  throughout  the  State ;  but  no  elector  shall  l>e  de- 
privetl  of  the  privilege  of  voting  by  reason  of  his  name  not  being  registeretl. 

The  foregoing  two  sections  of  the  constitution  comprise  all  that  is 
necessary  to  quote  in  this  connection.  The  law  passed  to  carrj'^  out  the 
above  provisions,  so  far  as  is  necessary  to  notice,  will  appear  as  we  pro- 
gress in  this  investigation. 

The  first  section  of  the  law  relates  to  the  duties  of  the  assessors  in 
making  registry  lists  and  returning  them  to  the  county  commissioners, 
setting  aside  a  time  for  revision  before  them.  It  also  provides  the 
machinery  for  carrying  on  the  election.  This  is  true  also  of  the  next 
preceding  sections  down  to  and  including  section  9. 

Section  10  of  the  registry  law  under  consideration  refers  to  non- regis- 
tered voters.    We  deem  it  proper  to  set  it  out  in  full. 

On  the  day  of  election  any  person  whose  name  shall  not  appear  on  the  registry  of 
voters,  and  who  claims  the  right  to  vote  at  said  election,  shall  produce  at  least  one 
qualified  voter  of  the  district  in  which  he  claims  to  be  a  voter  for  the  period  of  at 
least  two  months  inmiediately  preceding  said  election,  which  witness  shall  be  sworn 
or  affirmed,  and  subscribe  a  written  or  partly  written  and  partly  printed  affidavit  to 
the  facts  stated  by  him,  which  affidavit  shall  define  clearly  where  the  residence  is 
of  the  person  so  claiming  to  be  a  voter  ;  and  the  person  so  claiming  the  right  to  vote 
shall  also  take  and  subscribe  a  written  or  partly  written  and  partly  printed  affidavit, 
stating  to  the  best  of  his  knowledge  and  belief  when  and  where  he  was  bom;  that 
he  has  been  a  citizen  of  the  United  States  for  one  month,  and  of  the  Common w^ealth 
of  Pennsylvania  ;  that  he  has  resided  in  the  Commonwealth  one  year,  or  if  formerly  a 
qualified  elector,  or  a  native-born  citizen  thereof,  and  has  removed  therefrom  and 

H.  Mis.  58 27 


418  DIGEST    OF   ELECTION    CASES. 

returned,  that  be  has  resided  therein  six  months  next  precediuj;  said  election  ;  that  he 
has  resided  in  the  district  in  which  he  claims  to  he  a  voter  for  the  period  of  at  least 
two  months  immediately  preceding  said  election  ;  that  he  has  not  moved  into  the 
district  for  the  purpose  of  voting  therein  ;  that  he  has,  if  twenty-two  years  of  age, 
or  upwards,  paid  a  State  or  county  tax  within  two  years,  which  was  assessed  at  least 
twp  months  and  paid  at  least  one  month  before  the  election. 

The  said  aflSdavit  shall  also  state  when  and  where  the  tax  claimed  to  be  paid  by 
the  affidavit  was  assessed,  and  when  and  where  and  to  whom  paid  ;  and  the  txx  re- 
ceipt therefor  shall  be  produced  for  examination,  unless  the  atiiant  shall  state  in  liis. 
affidavit  that  it  has  been  lost  or  destroyed,  or  that  he  never  received  any;  and.  if  a 
natnralized  citizen,  shall  also  state,  when,  where,  and  by  wbat  court  he  wasnatural- 
ieed,  and  shall  also  produce  his  certificate  of  naturalization  for  examination.  But  if 
the  person  so  claiming  the  right  to  vote  shall  take  and  subscribe  an  affidavit  that  he 
is  a  native-born  citizen  of  the  United  States,  or  if  bom  elsewhere  shall  state  the  fact 
in  his  affidavit,-  and  shall  produce  evidence  that  he  has  been  naturalized  or  that 
he  la  entitled  to  citizenship  by  reason  of  his  fathers  naturalization  ;  and  shall  further 
state  in  his  affidavit  that  he  is,  at  the  time  of  making  the  affidavit,  of  the  age  of 
twenty-one  and  under  twenty-two  years ;  that  he  has  been  a  citizen  of  the  United 
States  one  month  and  has  resided  in  the  State  one  year  :  or  if  a  native-born  citizen 
of  the  State  and  removed  therefrom  and  returned,  that  he  has  resided  therein  six 
months  next  preceding  said  election,  and  in  the  election  district  two  months  imme- 
diately preceding  said  election,  he  shall  bo  entitled  to  vote  although  he  shall  not  have 
paid  taxes. 

The  said  affidavits  of  all  persons  making  such  claims,  and  the  affidavits  of  the  wit- 
nesses to  their  residence,  shall  be  preserved  by  the  election  board,  and  at  the  close 
of  the  election  they  shall  be  inclosed  with  the  list  of  votera,  tally-list,  and  other  papers 
required  by  law  to  be  filed  by  the  return  judge  with  the  prothonotary,  and  shall  re- 
main on  file  therewith  in  the  prothouotary's  office,  subject  to  examination  as  other 
election  papers  are..  If  the  election  officers  shall  find  that  the  applicant  possesses  all 
the  legal  qualifications  of  a  voter  he  shall  be  permitted  to  vote,  and  his  name  shall 
he  a<lded  to  the  list  of  taxables  by  the  election  officers,  the  word  "  tax"  being  added 
when  the  claimant  claims  to  vote  on  tax,  and  the  word  "age"  when  he  claims  to 
vote  on  age;  the  same  words  being  added  by  the  clerks  in  each  case  respectively  on 
the  lists  of  persons  voting  at  such  elections. 

Sections  11  and  12  of  the  act  provide  penalties  for  th^  failure  of  any 
of  the  election  officers  to  perform  their  duties. 

The  remaining  sections  of  the  law  provide  for  the  counting  of  the 
vote,  the  return,  and  the  manner  of  preserving  the  papers,  ballots,  &c.; 
in  short,  provides  the  machinery  for  carrying  out  the  will  of  the  people 
as  expressed  through  the  ballot-box.  Other  provisions  of  the  law  will 
be  adverted  to  as  they  arise. 

Having  brought  to  the  notice  of  the  House  the  constitutional  provis- 
ions, and  the  law  passed  by  the  general  assembly  of  the  State  of  Penn- 
sylvania to  carry  it  into  effect,  it  is  proper  to  call  attention  to  the  con- 
struction thereof  as  contended  for  by  the  parties  to  the  contest,  so  far 
as  they  affect  the  present  question. 

It  is  assumed  by  contestant,  and  we  believe,  found  to  be  true  by  the 
majority  of  the  committee  that  it  is  proven  that  1,000  and  upwards  of 
non- registered  electors,  voted  at  the  election  at  which  contestant  and 
contestee  were  opposing  candidates.  We  cannot  acquiesce  in  this  find- 
ing, as  we  believe  the  evidence  does  not  support  this  view,  and  we  will 
discuss  this  branch  of  the  case  at  the  proper  time.  But  assuming  the 
facts  to  be  as  stated,  we  must  dissent  from  the  conclusion  of  law  arrived 
at  by  our  associates.  We  do  not  believe  that  the  provisions  of  the  con- 
stitution relating  to  the  registry  of  voters  is  mandatory  in  so  far  as  it 
affects  the  right  of  a  non- registered  voter  to  vote  if  he  is  otherwise 
qualified.  The  clause  of  the  constitution  in  terms  excludes  any  such 
conclusion.  The  words  *'  but  no  elector  shall  be  deprived  of  the  priv- 
ilege of  voting  by  reason  of  his  name  not  being  registered,"  found  in 
section  1,  article  8,  to  my  mind  settles  the  question.  They  are  plain, 
and  admit  of  but  one  interpretation,  and  applying  the  acknowledged 
rule  to  them  that  the  ordinary  import  of  words  shall  be  taken  to  be 
their  meaning,  leaves  no  room  for  doubt. 


CURTIN   VS.    YOCUM.  419 

But  the  law  passed  to  carry  out  the  sectiou  seems  to  be  imperative, 
and  it  is  a  matter  of  some  ditficulty  to  decide  whether  it  is  repugnant 
to  that  chiuse  which  wouhl  seem  to  limit  the  power  of  the  legislature  to 
disfranchise  an  elector  for  nonregistration  who  is  otherwise  qualified. 
Now,  we  admit  that  registry  laws  are  salutary,  and  ought  to  be  main- 
tained in  all  proper  cases  and  by  all  proper  methods.  But  to  maintain 
them  constitutional  restrictions  must  not  be  disregarded. 

The  foregoing  clause  of  the  constitution  is,  in  our  judgment,  a  limita- 
tion on  the  power  of  the  legislature  of  the  State,  and  it  cannot  pass  a 
registry  law  whereby  a  voter  shall  be  deprived  of  suffrage,  if  otherwise 
qualified,  by  reason  of  non-registration.  This,  it  seems  to  us,  was  the 
very  purpose  of  the  clause.  If  left  out  the  section  would  be  perfect. 
It  was  to  prevent  the  legislature  from  disfranchising  qualified  voters 
that  it  was  inserted. 

The  new  constitution  of  Pennsylvania  was  made  whilst  all  the  adju- 
dicated cases  respecting  the  old  constitution,  and  the  laws  passed  there- 
nnder,  were  in  full  force,  and  well  known  to  the  members  composing 
the  constitutional  convention.  It  must  be  conclusively  presumed  that 
it  was  in  the  light  of  these  past  judicial  constructions  that  the  conven- 
tion acted  in  framing  the  new  constitution,  and  in  all  cases  where  the 
provisions  of  the  old  were  adequate  they  were  ingrafted  into  the  new ; 
but  where  they  had  been  found  to  be  deficient,  and  did  not  meet  the 
will  or  wish  of  the  people,  they  were  taken  down,  altered,  or  amended. 

A  glance  at  the  constitution  of  183S  and  its  amendments  shows  that 
it  was  silent  as  to  registry  laws.  Article  3,  sections  1,  2,  and  3,  of  the 
old  coijstitution  are  among  the  changed  and  altered  i)rovisions  of  the 
new,  and  it  must  be  presumed  that  the  old  constitution,  and  the  judicial 
constructions  given  it  on  the  subject  of  suffrage  and  elections,  were  not 
in  harmony  with  the  sentiment  of  the  people  of  the  State.  Hence  the 
provisions  relating  to  registration.  This  is  the  only  material  change 
made.  In  view  of  this,  the  act  of  1839,  section  lio  et  seq.,  referred  to  in 
the  majority  report,  is  not  in  point,  and  can  have  no  weight  in  deter- 
mining the  question  before  us,  because  the  whole  power  relating  to 
registration  under  the  old  constitution  resided  in  the  legislature;  it  wa& 
unrestricted  by  constitutional  barriers  ;  if  it  saw  fit — as  it  did — to  make 
an  imperati%e  registration  law,  there  was  no  limitation  on  its  power 
under  the  constitution  of  1838.  This  was  held  in  the  ca«e  of  Patterson 
C8.  Barlow  (60  Penn.  St.  Rep.,  54) ;  this  case  expressely  overrules  Pag& 
vs.  Allen  (58  Penn.  St.  Rep.,  338),  holding  otherwise. 

In  the  case  of  Patterson  vs.  Barlow,  supra,  the  supreme  court  of  the 
State  held  the  rule  announced  by  Chief  Justice  Shaw,  of  Massachusetts^ 
in  the  case  of  Capon  vs.  Foster  (12  Pick.,  485),  namely,  that  an  imper- 
ative registration  law,  not  forbidden  by  the  constitution,  was  a  reason- 
able regulation,  under  which  the  right  to  vote  might  be  exercised,  and 
was  not  therefore  an  additional  test  to  the  qualification  of  electors. 
(See  Brightly  Contested  Election  Ca^es,  No.  2,  page  51,  note  — .) 

The  new  constitution  expressly  fixes  and  determines  the  right  of  all 
qualified  non-registered  voters  to  vote,  by  saying,  "But  no  elector  shall 
be  deprived  of  the  privilege  of  voting  by  reason  of  his  name  not  being 
registered."^  We  therefore  conclude  that  all  provisions  of  the  law  set  out 
in  the  nuyority  report,  and  cited  in  this,  so  far  as  it  attempts  (if  that  is 
held  to  be  its  proper  construction)  to  hold  the  elector  responsible  for 
the  act  or  omission  of  election  officers,  regarding  registration,  or  so  far 
as  it  restrict^  his  right  to  vote,  if  he  is  otherwise  qualified,  is  an  addi- 
tional test  of  his  right  to  vote,  is  repugnant  to  that  sacred  privilege  re- 
served to  each  citizen,  so  aptly  expressed  in  the  very  words  of  the  con- 


420  DIGEST  OF  ELECTION  CASES. 

stitutioM,  that  he  shall  not  be  ''  deprived  of  the  privilege  of  voting  by- 
reason  of  his  name  not  being  registered."  This  is  but  a  declaration  of  a 
fundamental  principle  laid  down  in  every  text-book  by  every  respect- 
able writer,  and  recognized  by  all  the  courts  in  the  land.  Judge  (Jooley 
expresses  it  tersely  and  strongly,  as  follows : 

That  one  entitled  to  vote  shall  not  be  deprived  of  the  privilege  by  the  action  of  the 
authorities  is  a  fundamental  principle.     (Cooley's  Con.  Lim..  page  016.) 

All  the  cases  cited  to  the  contrary  are  where  either  the  constitution 
has  in  terms  made  registration  imperative  and  jurisdictional,  or  where 
the  legislature,  in  the  exercise  of  an  unrestrained  and  unrestricted  power, 
has  enacted  laws  of  the  same  import.  (See  Brightly's  Lead.  Cases  on 
Elections,  62,  note,  supra.)  In  this  view  of  the  case  the  registration  laws 
passed  in  aid  of  the  constitution  must  be  construed  to  be  directory 
merely,  so  far  as  they  touch  the  right  of  the  voter  to  exercise  the  right 
of  suffrage.  By  giving  them  this  construct  ion  they  can  stand  untouclied, 
as  not  being  in  contiict  with  the  constitution,  and  the  wise  and  just  pro- 
visions of  the  registry  law  be  maintained:  the  penal  clauses  can  be  en- 
forced against  the  officers  of  election,  and  all  the  checks  and  safeguards 
which  thej'  were  intended  to  throw  around  the  ballot  can  thus  be  rigidly 
enforced.     (See  State  vs.  Smith,  67  Maine,  328.) 

We  regard  section  10  of  the  election  law  of  Pennsylvania,  supra,  so  far 
as  it  requires  a  qualified  elector  to  produce  his  own  affidavit  and  that 
of  a  voter  of  his  election  district  to  his  qualifications,  directory  merely, 
and  in  the  nature  of  a  law  to  authorize  the  board  of  election,  on  the  day 
of  election,  while  it  is  being  held,  to  correct  the  registry  lists  thereto- 
fore furnished  them  by  the  county  commissioners,  by  adding  the  names 
of  qualified  voters  thereto  who  may  have  been  unintentionally  omitted. 
The  registry  lists  and  poll-lists  will  then  agree.  It  is  the  duty  of  the 
election  officers  to  comply  with  this  law.  It  is  imperative  on  them,  and 
if  they  fail  thej^  subject  themselves  to  the  penalties  provided  in  section 
12  of  the  registry'  law.  But  to  allow  a  non-registered  voter  to  vote  with- 
out requiring  him  to  comply  with  the  law, if  he  is  otherwise  qualified,  is 
quite  a  different  question.  If  he  refuses  to  comply  on  being  requested, 
then  it  is  clearly  the  duty  of  the  officers  to  refuse  his  vote,  because 
he  refuses  to  obey  a  reasonable  regulation  prescribed  by  the  legislature, 
and  he  hurts  no  •ne  but  himself.  But  if  he  is  allowed  to  vote  without 
being  required  to  file  the  affidavits,  and  is  otherwise  qualified,  his  vote 
is  not  an  illegal  one.  The  officers  of  election  have  simply  failed  to  take 
and  preserve  the  evidence  which  the  law  requires  of  them  ;  but  the  fail- 
ure on  their  part  to  take  and  preserve  this  evidence  does  not  reach  the 
qualification  of  the  voter.  Nor  do  we  believe  the  courts  will  hold  any 
such  doctrine,  for  it  would  be  equivalent  to  holding  the  evidence  of  a 
fact  superior  to  the  fact  itself. 

We  think  this  question,  under  the  present  constitution  and  laws  of 
Pennsylvania,  not  an  open  one.  The  highest  court  of  judicature  of  the 
State  has  decided  it ;  at  least  it  has  given  a  construction  to  that  part 
of  the  new  constitution  under  consideration,  and  we  quote  therefrom : 

The  State  constitution,  article  8,  section  1,  gives  to  every  citizen  possessing  the 
qualifications  prescribed  the  right  to  vote;  and  section  7  of  the  same  article  provides 
that  no  elector  shall  be  deprived  of  the  privilege  of  voting  by  reason  of  his  name  not 
being  registered.  To  disfranchise  all  the  voters  of  the  township,  as  we  are  asked  to 
do  in  this  petition,  the  facts  on  which  we  are  required  to  act  should  show  a  case  free 
from  legal  doubt.  If  we  by  our  decision  should  permit  the  carelessness,  or  even  the 
fraud,  of  officers  whose  duty  it  is  to  furnish  a  list  of  voters  at  the  elections  to  defeat 
the  election  and  deprive  the  people  of  the  county  of  the  officer  who  was  elected  by  a 
majority  of  their  votes,  we  would  thus  make  the  people  sufter  for  an  act  in  which  they 
did  not  participate  and  which  they  did  not  sanction.     In  so  doing,  instead  of  punish- 


CLTRTIN    VS.    YOCUM.  421 

ingan  officerforthe  violation  of  the  election  law.  we  practically  pnnish  the  voters  of  the 
cojinty  by  defeating  their  choice  of  a  comity  officer  as  declared  at  the  election.  A  de- 
cision of  this  kind  would  be  fraught  with  danger,  by  inviting  unscrupulous  or  un- 
principled persons  on  the  eve  of  an  iuiportaut  election  to  secrete  or  destroy  the  list  of 
voters  or  other  important  papers  in  a  township  in  which  the  majority  may  determine 
the  result  in  the  county.  Rult-s  applicable  to  contested  elections,* like' other  legal 
rules,  must  be  uniform,  and  the  results  and  consequences  of  decisions  therefore  de- 
termine their  correctness.     (Wheelock's  case,  1  Norris,  297-9.) 

Wecanuotagree  with  the  majority  of  the  committee  in  their  deductions 
from  this  case.  We  cannot  agree  either  that  itisshown  by  the  evidence 
in  tlie  case  at  bar  that  the  voters  were  themselves  at  fault.  I  challenge 
the  correctness  of  this  finding.  The  fact  is,  there  is  nothing  shown  in 
the  evidence  that  any  considerable  number  of  voters  were  in  fault  at 
all;  but  the  case  stands  on  evidence  of  this  kind.  The  registry  lists  of 
several  voting  precincts  are  introduced  in  evidence,  and  then  the  poll- 
lists.  All  the  names  appearing  on  the  poll-lists,  and  not  on  the  registry 
lists,  are  set  down  and  claimed  to  be  illegal.  In  this  way  the  1,000  and 
upwards  non-registered  voters  are  made  up.  And  we  undertake  to  main- 
tain that  under  the  evidence,  after  all  fraudulent  votes  absolutely 
proven  as  having  been  thrown  for  each  of  the  parties  are  taken  from 
their  returned  vote,  the  result  will  not  vary  far  from  the  returned  ma- 
jority for  contestee.  So  that  the  question  turns  on  the  non-registered 
votes  proven  as  we  have  above  stated. 

Wheelock's  case  was  much  stronger,  for,  after  reciting. in  his  petition 
that  the  commissioners  had  failed  in  their  duty  in  not  sending  the 
registry  list  to  the  election  officers  in  Freehold  Township  (upon  which 
statement  we  infer  the  recitals  in  the  majority  report  are  predicated),  he 
goes  on  to  recite  another  very  important  fact,  which  is  overlooked  seem- 
ingly in  the  statement  of  the  majority,  which  is,  "  Nor  was  there  then  any 
registry  of  voters  present  at  the  same,  whereby  the  names  of  the  resident 
taxables  and  vot<*r8  of  said  district  could  be  ascertained."  (Wheelock's 
case,  page  298.)  This  petition  was  demurred  to,  and  all  the  tactsstated 
were  of  course  taken  on  demurrer  to  be  true.  Yet  the  court  say  that, 
although  there  was  no  registry  list  at  the  polls  or  elsewhere,  so  far  as 
appears,  the  people  must  not  be  punished  for  the  failure  of  the  officers  to 
do  their  duty;  that  the  clause  ''no  voter  shall  be  deprived  of  the  priv- 
ilege of  voting  by  reason  of  his  name  not  being  registered"  protects  all 
legal  voters  in  the  right  of  suffrage;  and  the  inference  to  our  mind  is 
irresistible,  under  this  decision,  that  he  is  not  even  prima  facie  an  illegal 
voter  because  of  non -registration. 

The  contestant  assumes  that  having  shown  a  discrepancy  l)etweeu 
the  registry  lists  and  the  poll-lists,  and  the  further  fact  that  affidavits 
were  not  on  file  in  the  prothonotary's  office  corresponding  to  the  excess 
of  names  on  the  poll-lists,  therefore  all  persons  thus  voting  were 
•prima  facie  illegal  voters.  In  other  words,  that  it  must  be  presumed 
the  officers  of  election  failed  to  perform  all  their  duties  by  the  failure  to 
return  affidavits  of  non -registered  voters  to  the  prothonotary's  office. 

The  rule  of  law  is  that  a  public  officer  is  presumed  to  do  his  duty  the 
contrary  not  appearing.  Under  the  law  there  were  several  acts  requireti 
to  be  done  by  the  officers.  The  first  one  was  to  ascertain  whether  a 
person  offering  to  vote  was  registered;  if  he  was  not,  to  require  an  affi- 
davit of  himself  and  also  of  a  registered  voter  to  certain  facts ;  to  see 
that  it  was  subscribed  and  sworn ;  to  take  and  keep  it  till  the  election 
was  over,  and  then  return  it  to  the  prothonotary's  office  with  certain 
other  papers.  To  show  that  the  last  act  was  not  performed  does  not 
ahow  that  the  rest  were  left  undone,  or  that  proof  of  failure  in  this  one 
particular  is  proof  of  a  failure  in  all.     It  doubtless  does  overcome  the 


422  DIGEST    OF    ELECTION    CASES. 

l)resumption  as  to  the  particular  act,  but  ve  doubt  whether  it  can  be  ex- 
tended any  further.  We  are  not  ready  to  assent  to  the  i)roposition  that 
because  the  election  officers  failed  to  return  the  required  affidavits  to 
the  office  of  the  prothonotary,  therefore  they  must  be  presumed  not 
not  to  have  required  them  at  all. 

Happily,  however,  it  appears  in  the  testimony  submitted  that  in 
nearly'  every  instance  direct  proof  was  made  that  the  officers  did  require 
the  affidavits,  but  that  they  mistook  their  duty,  and,  instead  of  return- 
ing them  to  the  prothonotary's  office,  sealed  them  up  in  the  ballot-boxes 
"with  the  tickets,  and  deposited  the  boxes  with  the  nearest  justice  of  the 
peace  to  the  polling-place,  as  required  by  law. 

At  this  point  an  important  and  interesting  question  of  evidence  pre- 
sents itself,  namely,  as  to  whether  the  burden  of  proof  shifts  from  the 
contestant  to  the  coutestee  after  contestant  has  shown  prima  facie  a 
sufficient  number  of  illegal  votes  thrown  which  if  cast  for  contestee 
would  wipe  out  his  majority. 

We  cannot  perceive  that  the  well-known  rule  contended  for  applies. 
To  illustrate  it  we  admit  that  in  a  case  where  A  is  sued  on  a  promissory 
note  by  B — plea,  payment.  To  support  his  plea  A  offers  proof  that  on 
the  day  of  or  a  day  subsequent  to  the  maturity  of  the  note  he  paid  B 
a  sum  of  money  equal  to  the  amount  due.  B  admits  the  receipt  of  the 
inoney,  but  alleges  it  was  paid  for  another  purpose.  The  burden  now 
shifts  to  B,  and  he  must  show  by  preponderating  evidence  that  it  was 
applied  on  some  other  debt  or  for  some  other  i)urpose  than  the  pay- 
ment of  the  note. 

But  the  declaration  in  contestant's  notice  is  that  the  contestee  re- 
ceived a  sufficient  number  of  illegal  votes  to  more  than  counterbalance 
his  returned  majority.  Proof  that  tends  to  show  a  number  of  illegal 
votes  cast  in  excess  of  the  returned  majority  for  the  contestee  is  not  of 
itself  evidence  that  contestee  received  them.  It  does  not  even  raise  a 
presumption  to  that  effect;  and  when  contestee  is  disconnected  with 
such  vote — when  he  has  no  lot  or  part  in  bringing  it  about,  and  exerts 
no  influence  in  having  it  cast — he  certainly  cannot  be  placed  in  the  posi 
tion  of  being  compelled  to  prove  a  negative  in  order  to  maintain  his 
seat.  Such  a  doctrine  simply  overturns  all  rules  of  evidence.  We  can 
conceive  of  cases  which  might  be  different,  but  these  cases  are  not  ap- 
I)licable  to  the  one  at  bar.  We  know  of  no  safer  rule  in  judicial  proceed 
ings  than  the  elementary  one  that  a  declarant  must  prove  the  material 
allegations  of  his  declaration,  by  a  preponderance  of  evidence.  Anything 
short  of  this  is  an  iunovation  on  all  rules  of  evidence,  and  nuist  nieet 
with  disfavor  in  all  courts  where  justice  is  meted  out. 

We  refer  now  to  a  very  important  fact  in  the  testimony.  On  exam- 
ination of  the  record  in  this  case  we  tind  that  over  the  date  of  Decem- 
ber 10,  1878,  W.  F.  Reber  certifies  to  having  served  the  contestee  with 
11  copy  of  the  notice  of  contest  in  this  case  (see  part  1,  i)age  30). 

On  the  8th  of  January,  1879,  the  contestant  accepted  service  of  con- 
testee's  answer  (see  part  1,  page  108) ;  this  would  leave  22  days  in  Jan- 
uary and  18  days  in  February  for  contestant  to  take  his  testimony  un- 
<ler  the  statute. 

Under  the  law  of  Pennsylvania  there  are  two  elections  each  year  ;  one 
occurs  on  the  third  Tuesday  of  February  and  the  other  on  the  first  Tues- 
day after  the  first  Monday  in  November  (see  section  15,  registry  act, 
1874,  page  39).  It  happened  that  the  third  Tuesday  of  February  came 
on  the  18th  day  of  the  month  in  the  year  1879;  that  also  happened  to 
be  the  last  day  for  taking  testimony  on  the  part  of  the  contestant.  The 
<;onte8tee  could  not  take  testimony  before  the  time  expired  for    the 


CURTIN    VS.    YOCUM.  423 

taking  of  contestant's  testimony.  Under  the  laws  of  Pennsylvania  the 
ballots  and  other  papers  relating  to  the  election  are  required  to  be 
sealed  up  in  the  ballot  boxes  after  the  election  is  over,  and  the  ballot- 
box  deposited  with  the  nearest  justice  of  the  peace  to  the  polling-place. 
On  the  morning  of  the  day  of  the  next  succeeding  election  all  the  con- 
tents are  directed  to  be  taken  therefrom  and  publicly  destroyed  by  the 
election  officers  before  the  new  election  begins.  The  law  requires  the 
election  officers  to  take  an  oath  for  the  i)erformance  of  this  duty  (reg- 
istry, &c.,  acts,  1874,  page  39,  section  13,  latter  part). 

The  ballots  and  i)apers  contained  in  the  ballot-boxes  must  be  de- 
stroyed, unless  required  to  be  ke[)t  by  an  order  of  the  court.  (See  above 
act,  ibid.) 

During  the  taking  of  the  testimony -in-chief  in  the  case  it  was  discov- 
ered by  both  i>arties  to  this  contest  that  the  election  officers  had  taken 
the  affidavits  of  non-registered  voters  as  required  by  section  10  of  the 
registry  act,  but  iustead  of  returning  them  to  the  office  of  the  i>rothon- 
otary  as  required  by  law,  the.y  had  sealed  them  up  in  the  ballot-boxes. 
The  sjjring  elections  being  close  at  hand,  and  the  contestee  being  anx- 
ious to  j)reserve  the  evidence  of  the  regularity  of  the  election,  and  for 
the  purpose  of  preserving  the  contents  of  the  ballot-boxes  for  the  pur- 
])oses  of  this  contest,  filed  his  petition  in  the  proper  courts  of  the  coun- 
ties of  Centre  and  Clearfield  in  January,  1879,  praying  an  order  to  pre- 
serve the  contents  of  the  ballot-boxes,  that  he  might  be  able  to  serve  a 
subiKjena(i«ce.'?  tecum  on  the  cnstodians  thereof  and  make  profert  of  the 
contents.  (See  copy  of  petitions  in  Centre  County,  page  1451,  vol.  2 ; 
also  order  of  court,  page  1454,  vol.  2.  As  to  petition,  &c.,  in  Clearfield 
County,  filetl  January  25,  1879,  see  printed  testimony  of  Bloom,  page 
1603,  vol.  2.)  The  contestant,  with  full  knowledge  of  what  the  ballot- 
boxes  contained,  api)eared  by  counsel  in  Clearfield  County  and  resisted 
the  i»etition,  and  procured  the  court  to  deny  the  prayer  thereof.  (See 
l)rinied  testimony,  ])age  1603,  vol.  2.) 

The  evidence  theretofore  taken  shows  the  following  facts  relative  to 
the  contents  of  the  ballot-boxes,  namely : 

In  Benner  Township,  James  Henderson  swears  that  the  affidavits 
were  i)ut  in  the  ballot-box.     (Page  20,  vol.  1.) 

In  Houtzdale  Borough,  James  S.  Munn  swears  that  the  affidavits  were 
put  in  the  ballot-box.  (Page  530,  vol.  1.)  Same  borough,  McNamara 
swears  to  the  same  thing,  and  that  they  were  destroyed  at  spring  elec- 
tion.    (Page  1859,  vol.  1.) 

In  Woodward  Township,  George  W.  Quinn  swears  that  affidavits 
were  taken  from  non-registered  voters  as  required  by  law,  and  they 
were  j)ut  in  the  ballot-box.     (Page  1873,  vol.  1.) 

In  north  ward,  Bellefonte  Borough,  David  Bartley  swears  that  non- 
registered  voters  were  required  to  make  the  ])roppr  affidavits.  Tliey  are 
n)issing  from  the  prothonotary's  office.     (Page  1283,  vol.  1.) 

In  many  other  townships  and  boroughs  the  same  facts  appear,  but 
it  would  make  this  report  too  voluminous  to  cite  them. 

In  the  face  of  these  facts,  and  knowing  the  necessity  of  preserving  the 
papers  contained  in  the  ballot-boxes,  so  that  the  truth  might  be  ascer- 
tainedv  what  excuse  can  be  urged  for  the  contestant  in  resisting  and 
<lefeating  their  preservation  ?  Did  not  his  act  compass  their  destruc- 
tion? Is  he  not  here  asserting  the  illegality  of  this  vote,  and  asking 
the  House  to  unseat  the  sitting  member,  when  he  himself  was  a  i>arty 
to  the  destruction  of  the  very  evidence  which  would  have  settled  the 
-question  ?  Does  he  not  stand  in  the  position  of  the  spoliator  of  docu- 
mentary evidence  asking  to  take  advantage  of  his  own  wrong  !     How 


424  DIGEST  OF  ELECTION  CASES. 

can  we  say  the  result  is  left  in  doubt  when  the  contestant  himself  con- 
tributed largely  thereto  ?  We  think  it  safe  to  stand  on  the  elementary 
rule  that  one  asking  equity  must  do  equity. 

Eeferriug  to  the  point  that  because  at  certain  polls  and  precincts 
1,000  and  more  illegal  votes  were  polled — being  illegal  because  they 
were  not  registered,  and  no  affidavits  were  filed  as  required  by  law — 
that  therefore  the  vote  at  all  of  the  other  precincts  must  be  set  aside,  is 
a  doctrine  we  cannot  assent  to.  Admitting  for  the  sake  of  argument 
that  those  votes  were  illegal,  we  maintain  that  the  true  rule  is,  where 
illegal  votes  have  been  cast,  to  purge  the  poll  by  first  i)roving  for  whom 
they  were  thrown,  and  thus  preserve  the  true  vote ;  if  by  the  use  of 
due  diligence  this  cannot  be  done,  and  the  result  is  still  left  in  doubt, 
then  to  throw  the  poll  out  entirely.  We  think  this  is  a  safer  rule  to 
maintain  the  purity  of  the  ballot  box  than  the  other  one,  which  ai)por- 
tions  the  fraud  between  the  parties.  This  rule  ought  to  be  applied  in 
all  cases  where  the  fraudulent  vote  is  considerable  and  permeates 
the  whole  poll,  and  not  in  cases  where  it  is  scattering  and  inconsidera- 
ble. In  those  cases  it  may  be  justly  inferred  that  the  result  would  not 
be  aflfected  by  retaining  the  poll  uni)urged.  The  authorities  cited  by 
the  majority  of  the  committee,  and  an  almost  unbroken  line  of  author- 
ities in  Pennsylvania,  support  this  view. 

During  the  forty  days  which  the  contestant  had  for  taking  testimony 
he  could  have  introduced  in  evidence  every  ballot  cast  at  the  polls  of 
which  complaint  is  made.  He  could,  by  an  inspection  of  the  contents  of 
the  ballot-boxes,  have  ascertained  whether  the  affida\its  had  been  filed 
as  required  by  law ;  by  making  a  comparison  between  these  and  the 
registry  lists  and  the  poll-list  he  could  have  ascertained  the  exact 
truth  ;  and  as  each  ballot  was  numbered,  he  could  have  ascertained  for 
whom  each  illegal  vote  was  cast.  He  did  not  do  this,  but  actually 
aided  in  the  destruction  of  all  these  papers,  so  that  the  contestee  could 
not  show  the  true  state  of  affairs.  He  cannot  therefore  be  said  to  be 
within  the  rule  of  having  used  due  diligence  to  purge  the  polls  of  illegal 
votes.  He  cannot  bring  himself  within  the  McCrary  rule  of  deducting 
pi'O  rata  the  illegal  vote  at  each  poll,  for  this  would  increase  the  returned 
majority  of  contestee  by  many  hundreds.  He  cannot  insist  on  the  true 
rule  we  have  laid  down,  for  that  would  leave  a  large  majority  of  polling 
precincts  throughout  the  Congressional  district  unchallenged,  and  would 
increase  the  coutestee's  majority  to  near  600. 

He  is  therefore  driven  to  the  last  resort,  that  of  asking  that  the  elec- 
tion be  declared  void  because  of  the  uncertainty  of  the  result,  as  he 
claims,  in  certain  specified  polling  districts.  This  cannot  be  allowed,, 
according  to  my  view,  for  the  reasons  stated. 

If  the  rule  contended  for  by  contestant  is  adopted,  we  maintain  it 
must  be  applied  to  the  polling  precincts  where  contestant  alleges  the 
fraud  occurred.  Then  each  party  is  left  to  prove  his  vote  by  calling  the 
voters  in  the  rejected  precincts.  If  they  do  not,  they  must  stand  on 
the  vote  of  the  other  unchallenged  precincts,  and  cannot  be  heard  to 
complain  of  their  own  negligence. 

To  apply  either  of  these  rules,  as  we  have  seen,  confirms  the  title  of 
contestee  to  his  seat  as  a  member  of  Congress  from  the  twentieth  Con- 
gressional district  of  Pennsylvania  to  the  Forty-sixth  Congress. 

We  recommend  the  adoption  of  the  following,  viz : 

Resolved,  That  Seth  H.  Yocum  is  entitled  to  retain  his  seat  in  the 
Forty-sixth  Congress  as  a  member  from  the  twentieth  Congressional 


CURTIN    VS.    YOCUM.  425 

district  of  the  State  of  Pennsylvania .  and  that  Andrew  G.  Cnrtin  is  not 
entitled  thereto. 

W.  H.  CALKINS. 

J.  WARKEN  KBIFEK. 

J.  B.  WEAVER. 


Mr.  Springer,  from  the  Committee  on  Elections,  submitted  the  fol- 
lowing 

HEPORT: 

Your  committee,  to  whom  was  re/erred  the  contested-election  case  of  Andrew 
G.  Gurtin  against  Sefh  H.  Yocum,  from  the  ticentieth  Gongressional 
district  of  Pennsylvania,  having  had  the  same  under  consideration,  beg 
leave  to  report: 

The  committee  have  carefully  examined  the  questions  of  law  and  of 
fact  involved  in  the  case.  The  pleadings  and  evidence  are  very  volumi- 
nous, the  printed  testimony  covering  over  4,000  pages,  and  the  notice 
of  contest,  answer,  and  briefs  of  counsel  about  200  more.  The  commit- 
tee have  been  greatly  aided  in  reaching  a  conclusion  by  the  able  and 
exhaustive  arguments  of  counsel  for  the  parties  and  the  briefs  which 
they  have  filed  under  the  rules. 

The  votes,  as  returned  by  the  canvassing  officers  of  the  district,  show 
that  Mr.  Yocum  received  13,454  and  Mr.  Ourtin  13,381  votes,  gi\ing  Mr. 
Yocum  a  majority  of  73  votes,  to  which  it  is  admitted  7  votes  should  be 
added  on  account  of  a  clerical  error  in  the  return  from  the  west  ward 
of  Mifflinburg,  Union  County,  making  his  apparent  majority,  as  shown 
by  the  division  returns,  80  votes. 

Many  intricate  questions  both  of  law  and  fact  have  entered  into  the 
inquiry,  alike  in  the  taking  of  the  evidence  and  in  the  arguments  of 
counsel,  which  would  require  a  most  laborious  analysis  of  this  diffused 
and,  in  many  instances,  conflicting  testimony,  but  for  the  one  fact,  ad- 
mitted on  both  sides,  that  would  rule  the  judgment  of  any  dispassionate 
tribunal. 

The  briefs  and  arguments  of  the  opposing  counsel  agree  in  but  one 
point,  but  that  is  the  vital  one  of  the  case.  Taking  it  as  presented  on 
either  or  both  sides,  it  is  shown  that  votes  equal  in  number  to  many 
times  the  official  majority  were  illegally  received,  counted,  and  returned. 
See  appendix  to  contestant's  brief,  and  list  contained  in  that  of  the 
sitting  member,  commencing  on  page  21  of  Appendix  C.  In  the  former 
a  list  of  about  800  names  {exclusive  of  Gld  Armagh  and  Union  TownshipSj 
Mifflin  County)  is  given,  which  contestant  asserts  appear  on  the  several 
poll-lists  therein  cited  without  a  corresponding  registry,  or  the  affidavits 
required  by  law  as  an  indispensable  substitute  in  all  such  cases. 

In  ansAver  to  this  the  counsel  for  the  sitting  member  claim  that  they 
have  reduced  his  number  to  355  (see  Appendix  B  of  their  brief,  page 
20),  either  by  showing  a  registry  reasonably  approximating  to  the  name 
of  the  voter  on  the  poll  list,  or  by  citing  testimony  showing  affirmatively 
the  possession  of  the  constitutional  qualification  by  such  unregistered 
voter.  In  reply,  counsel  for  contestant  show  that  many  of  these  name* 
have  no  reasonable  correspondence  with  the  registry  claimed  for  them; 
that  in  about  fifty  instances  the  registry  sought  to  be  appropriated  be- 


426  DIGEST    OF    ELECTION    CASES. 

longs  in  fact  to  another  person,  and  who  actnally  voted  upon  it  him- 
self; and  that  in  over  fifty  other  cases  the  single  remark  "  voted  on 
a^e,"  without  reference  to  testimony  or  other  evidence  of  qualification, 
is  the  only  reason  given  for  taking  them  out  of  the  list.  Your  commit- 
tee, after  a  careful  comparison,  are  of  opinion  that  Appendix  B  of  con- 
testee's  brief,  in  connection  with  the  poll-lists  cited,  shows  on  its  face 
over  500  unregistered  votes  in  the  election  divisions  attacked  by  con- 
testant remaining  unexplained,  unaccounted  for,  and  unqualified  by 
any  evidence  to  which  we  have  been  referred. 

The  sitting  member  next  gives  us  in  his  brief  another  appendix,  C, 
headed  "  List  of  unregistered  votes  in  districts  giving  contestant  a  ma- 
jority," in  which  his  counsel  undertake  to  show  there  were  received, 
counted,  and  returned  in  these  other  divisions  1,848  unregistered  votes, 
without  referring  to  a  particle  of  evidence  to  show  for  whom  they  were 
cast.  In  the  argument  the  learned  counsel  for  Mr.  Yocum  conceded 
that  the  number  on  this  list  really  unregistered  was  probably  not  above 
1,200,  which  their  opponents  claim  (and  on  examination  we  find  them 
sustained) ;  that  names  ui)on  the  registry  lists  in  question  reasonably 
corresponding  to  these  assailed  reduce  the  actual  number  to  about  400, 
making  the  number  of  unregistered  votes  received,  counted,  and  re- 
turned in  the  entire  district,  without  any  evidence  on  either  side  to 
show  either  for  whom  they  were  cast  or  that  they  possessed  the  consti- 
tutional requisites,  in  the  neighborhood  of  900  votes,  or  ten  times  the 
certified  majority  of  the  sitting  member. 

We  now  come  to  examine  the  constitution  and  statute  of  Pennsyl- 
vania, so  far  as  they  relate  to  suffrage  and  elections  : 

Constitution  of  1873. 
ARTICLE  VIII.— SUFFRAGE  AN1>  ELECTIONS. 

Sectiox  1.  Every  male  citizen  twenty-one  years  of  age  possessing  tbe  following 
qnalifications  shall  be  entitled  to  vote  at  all  elections: 

First.  He  shall  have  been  a  citizen  of  the  United  States  at  least  one  month. 

Second.  He  shall  have  resided  in  the  State  one  year  (or  if,  having  previously  been  a 
qualified  elector  or  native-born  citizen  of  the  State,  he  shall  have  removed  therefrom 
and  returned,  then  six  months)  immediately  preceding  the  election. 

Third.  He  shall  have  resided  in  the  election  district  where  he  shall  oftier  to  vote  at 
least  two  months  immediately  preceding  the  election. 

Fourth.  If  twenty-two  year-s  of  age  or  upwards,  he  shall  have  paid  within  two  years 
a.  State  or  county  tax,  which  shall  have  been  assessed  at  least  two  months  and  paid  at 
least  one  month  before  the  election. 

Sec.  2.  The  general  election  shall  be  held  annnally  on  the  Tuesday  next  following 
the  first  Monday  of  November,  but  the  general  assembly  may  by  law  fix  a  different 
day,  two-thirds  of  all  the  members  of  each  house  couseutiug  thereto. 

Sec.  3.  All  elections  for  city,  ward,  borough,  and  township  officers,  for  regular  terms 
of  service,  shall  be  held  on  the  third  Tuesday  of  Februarj'. 

Sec.  4.  AH  elections  by  the  citizens  shall  be  by  ballot. '  Every  ballot  voted  shall  be 
numbered  in  the  order  in  which  it  shall  be  received,  and  the  number  recorded  by  the 
election  officers  on  the  list  of  vot«rs,  opposite  the  name  of  the  elector  who  presents 
the  ballot.  Any  elector  may  write  bis  name  upon  his  ticket,  or  cause  the  same  to  be 
written  thereon  and  attested  by  a  citizen  of  the  district.  The  election  officers  shall  be 
sworn  or  affirmed  not  to  disclose  how  any  elector  shall  have  voted  unless  required  to 
do  so  as  witnesses  in  a  judicial  proceeding. 

Sec.  7  [of  the  above  articles].  All  laws  regulating  the  holding  of  elections  by  the 
citizens  or  for  the  registration  of  electors  shall  be  uniform  throughout  the  State,  bat 
no  elector  shall  be  deprived  of  the  privilege  of  voting  by  reason  of  his  name  not  bein§ 
registered. 


CURTIN    VS.    YOCUM.  427 

STATUTORY  PROVISIONS. 

A  further  xupjUctnent  to  the  act  regulating  electionit  in  thin  Mmtnonwealth. 

(See  Pamphlet  Laws  1874,  page  33.) 

Sections  1  and  2  direct  tbe  mode  and  manner  of  making  and  returning  the  registry 
?iud  assessment  of  electors. 

SfX'.  3.  After  the  assessments  have  been  completed  on  the  sixty-first  day  before  the 
Tuesday  Ti«»xt  following  the  first  Monday  of  November  in  each  year,  the  assessor  shall 
ou  the  following  day  make  a  return  to  the  county  commissioners  of  the  names  of  all 
persons  assessed  by  him  since  the  return  required  to  be  made  by  him  by  the  first  section 
of  this  act,  noting  opposite  each  name  the  observations  and  explanations  required  to  be 
]ioted  as  aforesaid;  and  the  county  commissioners  shall  thereupon  cause  the  same  to 
he  added  to  the  return  required  by  the  first  section  of  this  act,  and  a  full  and  correct 
•<  opy  thereof  to  be  made  containing  the  names  of  all  persons  so  returned  as  resident 
taxables  in  said  election  district,  and  furnish  the  same,  together  with  the  necessary 
<i]ectiou  blanks,  to  the  officers  of  the  election  in  such  election  district  ou  or  before  seveji 
o'clock  on  the  morning  of  the  election  ;  and  no  man  shall  bo  permitted  to  vot«  at  the 
<>lection  on  that  day  whoso  name  is  not  on  said  list,  unless  he  shall  make  proof  of  bis 
right  to  vote  as  hereinafter  required. 

Sec.  10.  On  the  day  ol  election  any  person  whose  name  shall  not  appear  on  the 
registry  of  voters,  antl  -who  claims  the  right  to  vote  at  said  election,  shall  produce  at 
least  one  qualified  voter  of  the  district  as  a  wituess  to  the  residence  of  the  claimant  in 
the  district  in  which  he  claims  to  be  a  voter  for  a  period  of  at  least  two  months  imme- 
diately preceding  said  election,  which  witness  shall  be  sworn  orafiBrmedand  subscribe 
n  written  or  partly  Avritten  and  partly  printed  affidavit  to  the  facts  stated  by  him, 
which  affidavit  shall  define  clearly  where  the  residence  isof  the  person  so  claiming  to 
l>e  a  voter;  and  the  person  so  claiming  the  right  to  vote  shall  also  take  and  subscribe 
4v  written  or  partly  written  and  partly  printed  affidavit  stating,  to  the  best  of  his 
knowledge  and  belief,  when  and  where  he  was  born  ;  that  he  has  been  a  citizeii  of  the 
Unite.''  States  for  one  month,  and  of  the  Commonwealth  of  Pennsylvania;  that  he  has 
resided  in  the  commonwealth  one  year,  or,  if  formerly  a  qnalified  elector  or  a  native- 
born  citizen  thereof,  and  has  removed  therefrom  and  returned,  that  he  has  resided 
therein  six  months  next  preceding  said  election;  that  he  has  resided  in  the  district  in 
which  he  claims  to  be  a  voter  for  the  period  of  at  least  two  months  immediately  pre- 
ceding said  election  :  that  he  has  not  moved  into  the  district  for  the  purpose  of  vot- 
iug  tliereiu;  that  he  has,  if  twenty-two  years  of  age  or  upwards,  y)aid  a  Stat«  or 
■county  tax  within  two  years,  which  was  assessed  at  least  two  months  and  paid  at 
least  one  month  before  the  election.  The  said  affidavit  shall  also  state  when  and  where 
the  tax  claimed  to  be  paid  by  the  affiant  was  assessed,  and  when  and  where  and  to 
■whom  paid :  and  the  tax  receipt  therefor  shall  be  produced  for  examination,  unless 
the  affiant  shall  state  in  his  affidavit  that  it  has  been  lost  or  destroyed,  or  that  he 
never  received  any;  and  ifa  naturalized  citizen,  shall  also  static  when,  and  where,  by  what 
court  he  was  naturalized,  and  shall  also  produce  his  certificate  of  naturalization  for 
^examination.  But  if  the  person  so  claiming  the  right  to  vote  shall  take  and  subscribe 
an  attidavit  that  he  is  a  native-born  citizen  of  the  United  Stat-es,  or,  if  born  elsewhere, 
shall  state  the  fact  in  his  attidavit,  and  shall  produce  evidence  that  he  has  beeu  nat- 
uralized or  that  he  is  entitled  to  citizenship  by  reason  of  his  fa'her's  naturalization, 
and  shall  further  state  in  his  affidavit  that  he  is,  at  the  time  of  making  the  affidavit, 
<'f  the  age  of  twenty-oue  and  under  twenty-two  years;  that  he  has  been  a  citizen  of 
the  United  States  one  month,  and  has  resided  in  the  State  one  year;  or,  if  a  uative- 
1>orn  citizen  of  the  State  and  removed  therefrom  and  returned,  that  he  has  resided 
therein  six  months  next  preceding  said  election,  and  in  the  election  district  two 
months  innnediately  preceding  such  election,  he  shall  be  entitled  to  vote  although 
he  shall  not  have  paid  taxes.  The  said  atfidavits  of  all  persons  making  snch  claims, 
aud  the  afiRdavits  of  the  witnesses  to  their  residence,  shall  be  preserved  by  the  election 
board,  and  at  the  close  of  the  election  they  shall  be  inclosed  with  the  list  of  voters, 
tally-list,  and  other  papers  required  by  law  to  be  filed  by  the  return  judge,  with  the 
prothonotary,  and  shall  remaiu  on  file  therewith  in  the  prothonotary's  office,  subject 
to  examination  as  other  election  papers  are.  If  the  election  officers  shall  find  that 
the  applicant  possesses  all  the  legal  qualifications  of  a  voter  he  shall  be  permitted  to 
A  ote,  and  his  name  shall  be  added  to  the  list  of  taxables  by  the  election-oflficers,  the 
word  "tax  "being  added  where  the  claimant  claims  to  vote  on  tax  and  the  word 
'•age"  where  he  claims  to  vote  on  age;  the  same  words  being  added  by  the  clerks  in 
•each  case,  respectively,  on  the  lists  of  persons  voting  at  such  election. 

Skc.  12.  If  any  election  officer  shall  refuse  or  neglect  to  require  such  proof  of  the 
right  of  suff"rage  as  is  prescribed  by  this  law,  or  the  laws  to  which  this  is  a  8np;dement, 
trora  any  person  offering  to  vote  whose  name  is  not  ou  the  list  of  assessed  voters,  or 


428  DIGEST  OF  ELECTION  CASES. 

whose  right  to  vote  is  challenged  by  any  qualified  voter  present,  and  shall  admit  such 
person  to  vote  without  requiring  such  jiroof,  every  person  so  ott'eudiug  shall,  upon  con- 
viction, be  guilty  of  a  misdemeanor,  and  shall  bo  sentenced  for  every  such  offense  to 
pay  a  fine  not  exceeding  five  hundred  dollars,  or  to  undergo  an  imprisonment  not 
more  than  one  year,  or  both,  at  the  discretion  of  the  court. 

Sec.  13.  *  *  *  Whenever  a  place  has  been  or  shall  be  provided  by  the  authori- 
ties of  any  city,  county,  township,  or  borough  for  thesafe  keeping  of  the  ballot-boxes, 
the  judge  and  minority  inspector  shall,  after  the  election  shall  be  finished,  and  the 
ballot  box  or  boxes  containing  the  tickets,  list  of  voters,  and  other  papers  have  been 
securely  bound  with  tape  and  sealed,  and  the  signatures  of  th«  judge  and  inspector.'* 
affixed  thereto,  forthwith  deliver  the  same,  together  with  the  remaining  boxes,  totho 
mayor  and  recorder  of  such  city,  or  in  counties,  townships,  or  boroughs  to  such  per- 
son or  persons  as  the  court  of  common  pleas  of  the  proper  couTity  may  designate,  at 
the  place  provided  as  aforesaid,  who  shall  then  depcsit  the  said  boxes  and  keep  the 
same  to  answer  the  call  of  any  court  or  tribunal  authorized  to  try  the  merits  of  such 
election.  Whenever  the  election  ofKcers  of  any  ejection  district  shall  require  the  elec- 
tion boxes  of  such  district  to  hold  any  election  which  liy  law  they  are  or  shall  be 
required  to  hold,  they  shall  keep  the  same  securely  in  their  posses.sion  without  open- 
ing, until  the  morning  of  such  election,  and  until  they  shall  severally  be  sworn  or 
amrmed  not  to  disclose  how  any  elector  shall  have  voted,  aud  after  being  so  sworn  or 
affinned  they  shall  open  the  said  boxes  and  burn  and  totally  destroy  all  the  ballots 
and  other  jjapers  which  they  shall  find  therein,  before  proceeding  to  hold  such  election. 

The  evident  object  of  the  law-makiug  |)ower  of  Penusylv.auia  in  the 
passage  of  the  foregoing  statnte  was  this  :  Such  had  been  the  looseness 
theretofore  in  receiving  parol  evidence  as  to  the  right  of  persons  to  vot« 
on  the  day  of  election,  and  such  was  the  difficulty  of  indicting  persons 
for  perjury  on  such  parol  evidence,  that  it  was  deemed  necessary  to 
provide  by  law  that  the  proof  of  an  elector's  right  to  vote  should  no 
longer  rest  on  parol  evidence,  but  that  the  voter,  in  order  to  estab- 
lish by  competent  evidence  his  right  to  vote,  should  file  a  written  or 
printed  affidavit  of  himself  as  to  his  qualifications,  and  also  the  written 
or  printed  affidavit  of  another  qualified  voter  of  the  same  election  dis- 
trict as  to  his  residence  in  the  precinct  for  two  mouths  immediately  pre- 
ceding the  election. 

The  authorities  are  uniform  to  the  effect  that  all  statutes  are  manda- 
tory which  cannot  be  disregarded  without  ignoring  the  legislative  in- 
tent. The  will  of  the  legislature  cannot  be  carried  out  unless  this  pro- 
vision of  the  statute  is  complied  with,  and  to  disregard  it  is  to  disregard 
one  of  the  safeguards  which  the  law-making  power  of  Pennsylvania 
deemed  necessary  for  the  protection  of  the  ballot. 

It  is  contended  by  counsel  for  the  sitting  member  that  the  require- 
ments of  sections  3  and  10  above  set  forth  are  merely  directory,  aud 
a  disregard  of  them  does  not  invalidate  the  vote  cast  without  compli- 
ance with  its  provisions.  But  your  committee  cannot  agree  to  this: 
view  of  the  law.  The  true  line  of  distinction  as  to  whether  a  statutory 
provision  is  mandatory  or  merely  directory  in  its  nature  is  laid  down 
in  Smith  on  Statutes  and  other  well-known  authorities  : 

It  is  to  be  presumed  that  the  legislature  intended  to  make  such  acts  imperative  in 
all  case^  where  the  object  aimed  at  could  not  be  attained  unless  the  act  should  be  con- 
strued as  imperative.     (Smith  on  Statutes,  sec.  680,  p.  795.) 

By  directory  prbvisions  is  meant  such  as  are  to  be  considered  as  giving  dlrcctiotis 
which  ought  to  be  followed,  but  not  as  so  limiting  the  power  in  respect  to  which  the  di- 
rections are  given  that  it  cannot  he  effectually  exercised  without  observing  them. 
(Cooley  on  Const.  Limitations,  74.) 

Statutory  requisitionsaredeemed  directory  only  when  they  relate  to  some  i»tma^«r»«r 
matter,  where  a  compliance  is  a  matter  of  convenience  rather  than  of  substance. 
(People  r«.  Schoemerhorn,  19  Barb.,  C>5H.) 

We  find  no  Pennsylvania  decisions  on  this  point  since  the  adoption 
of  the  new  constitution,  and  the  consequent  modification  of  the  law* 
regulating  the  suffrages,  in  1874;  but  Judge  Allison,a  jurist  of  conceded 
ability  and  experience,  in  disposing  of  the  Philadelphia  contested-elec- 


CURTIN    V8.    YOCUM. 


429 


tion  cases  of  1867  (reported  in  1st  Brewster.  171,  et  seq.),  plaees  a  judi- 
cial construction  upon  the  law  of  1839,  then  in  force  in  Pennsylvania; 
and  for  the  purpose  of  ascertaining  how  for  the  ruling  in  that  case  would 
apply  to  the  corresponding  provisions  of  the  act  now  under  considera- 
tion we  place  them  side  by  side : 


Act  of  1839,  sec.  6r>,  .fc. 

No  person  shall  be  admitted  to  vote 
whose  name  is  not  contained  in  the  list  of 
taxable  inhabitants  furnished  by  the  com- 
missioner aforesaid,  nnless,  &-c.  (Brightly, 
Digest,  vol.  1,  pages  548,  .'^49,  pi.  43.) 


Jet  of  1874,  sec.  3,  <f-c. 

j  *  ''  *  Xo  man  shall  be  permitted  to  vote 
at  the  election  on  that  day  whose  name  is 
not  on  said  list  unless  he  shall  make  proof 

I  of  his  right  to  vote  as  hereinafter  required. 

■  (Pamphlet  laws  of  Pennsylvani.a  for  1874, 
page  33.) 

I       Sec.  10.  On  the  day  of  election  any  per- 
son whose  name  shall  not  appear  on  the 
j  registry  of  voters,   and  who  claims  the 
I  right  to  vote  at  said  election,  xhall  produce 
I  at  leant  one  qualified  voter  of  the  district  as 
\  a  witness  to  the  residetice  of  the  claimant 
in  the  district  in  which  ho  claims  to  be  a 
voter,  which  witness  shall   be  sworn  or 
affirmed    and    subscribe     a    written    or 
partly  written  and  partly  printed  affida- 
vit to  the  facts  .stated  by' him,  which  affi- 
davit shall  define  clearly  where  the  resi- 
dence is  of  the  person  so  claiming  to  be  a 
voter;   and  the   person  so  claiming  the 
right  to  vote  shall  also  take  and  subscribe 
a  written  and   partly  printed  affidavit, 
stating,  &c.  (the  possession  of  the  consti- 
tutional requisites  in  regard  to  age,  citi- 
zenship, residence,  and  payment  of  tax  >. 
(I hid,  35.) 


Skc.  1)6.  In  all  cases  when  the  name  of 
the  person  claiming  to  vote  is  not  found 
on  the  list  fnrnished  by  the  county  com- 
missioners and  assessor,  or  his  right  to 
vote,  whether  found  thereon  or  nor,  is 
objected  to  by  any  qualified  citizen,  it 
shall  be  the  duty  of  the  inspector  to  ex- 
amine such  person  on  oath  as  to  his  qual- 
ification, and  if  he  claims  to  have  resided 
within  the  State  for  one  year  or  more,  his 
oath  shall  be  sufficient  proof  thereof,  but 
he  shall  make  proof  by  at  hast  one  competent 
witness,  who  shall  be  a  qualified  elector, 
that  he  has  resided  within  the  district  for 
more  than  10  days  next  immediately  pre- 
ceding said  election,  and  shall  also  him- 
self swear  that  his  bona  fide  residence  in 
pursuance  of  his  lawful  calling  is  within 
the  district,  and  that  he  did  not  remove 
into  said  district  for  the  purpose  of  voting 
therein.    (Same,  page  589,  sec.  66,  page  44.) 

"  These  requirements  "  [referring  to  the  act  of  1839],  says  Judge  Allison  (1  Brewster, 
174),  "  are  in  no  proper  sense  directory  merely ;  they  are,  in  all  particulars  in  which  the 
law  directs  that  they  shall  be  ascertained  before  the  vote  shall  be  received,  absolutely  essen- 
tial to  a  dtie  election." 

'  'As  to  one  class  of  voters,  the  Law  makes  the  assessment  list  furnished  to  the  elec- 
tion officers  i>rima/acfe  evidence,  but  prima  facie  only  of  their  right  to  vote.  As  to  all 
others  claiming  the  right,  the  law's  directiox  is  imperative  :  no  person  shall  be 
permitted  to  vote  whose  name  is  not  on  the  list  of  tajcable  inhabitants  furnished  by  the  city 
commissioners,  sinless  he  make  the  proof  to  trhich  we  have  referred." 


Judge  King,  in  the  Kneass  case,  remarks  of  this  class  of  voters : 

The  language  of  this  law  is  so  clear,  and  the  policy  of  it  so  obvious,  that  it  admits 
of  no  construction  qualifying  its  letter  as  respects  persons  not  found  on  the  list.  It  is 
from  votes  oti'ered  by  this  class  of  persons  that  the  greatest  danger  of  election  frauds 
arises.  *  *  *  A  rigid  and  faithful  execution  of  this  part  of  the  election  law  is  absolutely 
indispensable  to  a  fair  election.     (2  Parsons,  580.) 

Let  it  be  remembered  that  the  statutory  provision  immediately  in 
question  is  the  one  which  occurs  at  the  close  of  the  third  section  of  the 
act  of  1874,  enacted  to  give  effect  to  the  additional  checks  and  safe- 
guards which  the  people  of  Pennsylvania  manifestly  intended  to  throw 
around  the  ballot-box  by  their  amended  constitution,  then  just  adopted 
by  an  unprecedented  majority.  The  clause  in  question  is  in  these  words : 
*  *  *  "And  no  man  shall  be  permitted  to  vote  at  the  election  on 
that  day  whose  name  is  not  on  said  list,  unless  he  shall  make  proof  of 
his  right  to  vote  as  hereinafter  required."  That  is,  according  to  the 
requirements  of  section  10  of  same  act,  which  section  is  hereinbefore 
quoted  in  full. 


430  DIGEST    OF    ELECTION    CASES. 

Now,  with  all  due  respect  for  those  who  differ  with  us,  we  submit  that* 
there  cao  be  no  directory  provisions  in  a  statute  in  regard  to  that  which 
the  statute  itself  forbids  being  done  at  all. 

Constructiou  can  never  abrogate  the  text  •  *  *  *  jt,  can  never  fritter  awaj  it* 
obviojs  sense ;  *  *  *  it  can  never  narrow  down  its  broad  limitations ;  *  *  *  ifc 
can  never  enlarge  its  natural  boundaries.     (Story  on  Constitution,  section  407.) 

The  right  rule  of  construction  is  to  intend  the  legislature  to  have  meant  what  they 
have  actually  expressed,  unless  some  manifest  incongruity  woiihl  result  from  doing  so,  or 
unless  the  context  clearit/  shows  that  such  a  construction  would  not  be  the  right  oue» 
(Jackson  cs.  Lewis,  17  Johnson.  475.) 

The  result  of  all  the  authorities  is  that  all  constitutional  provisions  in 
statutes  defining  what  the  voter  himself  must  do,  both  as  to  qualifying  him- 
self as  an  elector  and  furnishing  the  quality  and  quantity  of  evidence 
thereof  which  the  law  demands,  is  mandatory,  jurisdictional,  and  in  the 
nature  of  conditions  precedent,  while  those  which  merely  relate  to  the 
conduct  of  the  election  officers  may  or  may  not  be  directory  according  a& 
they  may  or  may  not  appear  to  aliect  results,  and  according  as  they  may 
or  may  not  seem  to  have  been  regarded  by  the  law-makiug  power  as  es- 
sential and  necessary  safeguards  against  the  mischief  the  statute  wa» 
intended  to  prevent.  Thus  in  Morris  vs.  Haines  (2  N.  H.,  240),  where 
the  statute  required  State  officers  to  be  chosen  by  a  check-list,  and  by 
delivery  of  the  ballots  to  the  moderator  in  person  ;  and  it  was  held  that 
the  requirement  of  a  check-list  was  mandatory,  antl  the  election  in  the 
town  was  void  if  none  was  kept.  The  decision  was  put  upon  the  ground 
that  the  check-list  was  provided  as  an  important  guard  against  indis- 
criminate and  illegal  voting,  and  the  votes  given  by  ballot  without  this 
protection  were  therefore  as  much  void  as  if  given  viva  voce. 

The  following  is  the  concluding  portion  of  the  opinion  : 

If  at  an  election  of  Representative  the  check-list  be  flung  aside  and  votes  are  in- 
discriminately crowded  into  the  ballot-box  without  an  inspection  by  the  moderator, 
it  must  be  obvious  to  all  observing  citizens  that  every  evil  which  the  statute  was  de- 
signed to  remedy  is  likely  to  hajtpen,  and  that  two  prominent  provisions  of  it  will  be 
trampled  under  foot.  Votes  so  given  and  received  are  neither  given  nor  received  in 
conformity  to  the  essential  requisitions  of  the  statute,  and  such  requisitions  being 
violated,  the  votes  must  be  void  They  would  be  no  more  void  if  given  I'jra  voce  rather 
than  by  ballot.  If  such  a  neglect  of  the  stsvtute  will  not  render  the  whole  proceed- 
ings void,  what  neglect  will  have  that  operation  ?  The  whole  balloting,  therefore, 
in  this  manner  is  vitiated.     No  Representative  can  thus  be  duly  elected. 

Wheelock's  case  (1  Xorris,299),  cited  by  counsel  for  the  sitting  mem- 
ber, is  not,  when  carefully  examined,  in  conflict  with  the  other  author- 
ities heretofore  referred  to.  In  that  case  the  voters  appear  to  have  been 
regularly  registered  and  the  registry  duly  filed  in  the  place  designated 
by  law.  The  electors  by  getting  themselves  placed  on  it  had  prima 
facie  done  all  that  the  law  demanded  of  them.  They  had  furnished  all 
the  proofs  of  their  right  to  vote  required  by  the  statute  until  that  right 
was  challenged  by  a  "  qualified  citizen  of  the  district."  They  were  in 
no  respect  in  default.  But  the  county  commissioners  had  neglected  to 
furnish  the  election  oflftcers  with  a  certified  copy  of  the  registry  duly 
filed  in  their  office,  as  the  law  required  them  to  do,  and  it  was  not  al- 
leged in  the  ease  that  challenges  were  made  or  disregarded. 

What  distinguishes  this  case  from  those  relied  upon  by  the  contest- 
ant's counsel  is  the  all-important  and  controlling  fact  that  in  the  latter 
the  voters  tlieinselves  were  in  default,  while  in  the  former  it  was  the 
county  commissioners.  It  is  the  clearest  misapprehension  of  this  case 
to  apply  what  is  there  said  in  reference  to  the  effect  of  omissions  or  mis- 
takes of  officers  in  preparing  and  supplying  election  papers  to  the  case 
of  voters  who  fail  to  furnish  the  evidence  of  their  right  to  participate  in 
the  choice  of  public  servants  required  by  the  statute  as  an  indispensa- 


CURTIN   VS.    YOCUM.  431 

ble  substitute  for  registration.  What  is  said  by  Judge  Allison  in  the 
Philadelphia  election  cases  of  1867,  hereinbefore  cited,  and  to  be  found 
iu  1  Brewster,  pages  171,  172,  is  peculiarly  applicable  to  this  phase  of 
the  question : 

The  elector's  privilege  ia  not  a  mere  constitutional  abstraction,  but  it  is  to  be  exer- 
cised iu  subordination  to  law,  and  on  proofof  title  of  the  person  claiming  its  exercise. 
The  right,  however  well  founded  iu  fact,  may  be  lost  for  wanto/  such  evidence  of  title 
as  the  law  demands,  just  as  the  possession  and  enjoymeut  of  property,  secured  by  the 
declaration  of  rights  to  the  citizen,  may  be  taken  away  or  withheld  from  him  for  the 
want  of  the  necesnary  evidence  of  ownership. 

It  is  to  enable  the  honest  voter  to  secure  to  himself  his  constitutional  privilege,  to 
protect  him  against  its  loss  by  fraud,  mistake,  or  negligence  on  the  part  of  others,  that 
laws  have  been  passed  prctviding  for  an  examination  into  the  result  of  an  election  at 
the  instance  of  qualitied  voters  who  have  reason  to  believe  that  an  undue  election  had 
been  held. 

This  legislation  is  therefore  uot  to  be  regarded  as  hostile  to  the  exercise  of  a  right 
conferred  upon  the  citizen  by  the  supreme  law  of  the  land,  but,  on  the  contrary,  as  an 
aid  of  and  a  protection  to  it.  The  design  is  to  prevent  its  being  nullified  by  illegal 
or  fraudulent  votes. 

The  vote  of  an  elector  may  be  as  certainly  lost  to  him  by  an  illegal  ballot  going  ia 
with  it  as  though  he  had  been  prevented  by  force  from  voting  or  his  right  unlawfully- 
denied  to  him  at  the  polls. 

The  case  of  Doertlinger  vs.  Hilmantel  (21  Wisconsin,  666)  is  precisely 
in  point.    The  statute  of  Wisconsin  is  as  follows : 

No  vote  shall  be  received  at  any  annual  election  in  this  State  iinless  the  name  of  the 
person  offering  to  vote  be  on  the  registry  made  on  the  Tuesday  or  Wednesday  preced- 
ing the  election,  unless  the  person  offering  to  vote  shall  furnish  to  the  board  of  in- 
spectors his  afiidavit,  in  writing,  giving  his  reasons  for  not  appearing  on  the  day  for 
correcting  the  alphabetical  list,  and  prove  by  the  oath  of  a  householder  of  the  district 
in  which  he  offers  his  vote  that  he  knows  such  persou  to  be  an  inhabitant  of  the  dis- 
trict, and,  if  in  any  incorporated  city  or  village,  giving  the  residence  of  such  persoik 
within  said  district.     (Sec.  7,  ch.  445,  Laws  of  1864.) 

In  the  case  of  Doerfliuger  vs.  Hilmantel  it  appeared  that  over  500 
votes  were  received  in  Milwaukee  from  persons  whose  names  were  not 
on  the  register,  no  one  of  whom  gave  to  the  inspectors  receiving  his 
vote  his  residence  within  the  district,  either  by  his  own  aflBdavit  or  by 
the  oath  of  a  householder  of  such  district.  The  court,  by  Chief  Justice 
Dixon,  the  entire  court  concurring,  said : 

It  is  furthermore  alleged  that  of  those  544  votes  145  were  received  from  persons  no 
one  of  whom  proved  to  the  inspectors  receiving  his  vot«  by  the  oath  of  a  householder 
of  tke  district  that  he  knew  such  person  to  be  an  inhabitant  of  the  district,  nor  did 
any  one  of  them  furnish  the  inspectors  any  proof  upon  oath  that  he  was  a  resident  of 
the  election  district.  It  will  be  seen  from  these  statements,  not  that  there  was  a  total 
want  of  proof  or  an  attempt  to  evade  the  requirements  of  the  act,  but  only  that  the 
proofs  were  iu  some  particulars  defective.  It  is  not,  therefore,  a  question  whether 
the  statute  may  be  wholly  disregarded  ordispensed  with  by  the  inspectors,  but  whether 
when  an  attempt  is  made  in  good  faith  to  execute  it  a  mistake  in  the  execution  or  any 
departure,  however  slight,  from  the  terms  of  the  statute  will  vitiate  the  proceedings 
and  annul  the  votes  so  irregularly  received.  In  other  words,  it  is  a  question  whether 
the  voters  are  disfranchised  by  any  such  mere  irregularity  or  error  in  the  proceedings. 
This  is  the  precise  question,  as  I  understand  it.  I  say  the  precise  question,  because  no 
fraud  or  intentional  misconduct  on  the  part  of  any  one  is  alleged,  nor  is  it  alleged 
that  there  was  any  inherent  disqualification  in  the  persons  who  gave  the  votes.  They 
were  qualified  electors  of  the  district,  entitled  under  the  constitution  and  laws  to  vote 
at  the  election,  except  that  their  votes  were  not  received  in  the  form  prescri  bed  by  the 
statute.  As  to  one  hundred  and  forty-five  of  them,  the  fact  that  they  were  inhabitants 
of  the  district  was  not  proved  before  the  inspectors;  and  as  to  the  others,  their  par- 
ticular places  of  residence  within  the  district  were  not  given.  As  to  all  of  them, 
the  inspectors  may  have  .acted  upon  their  own  knowledge  of  the  facts,  and  thought 
that  proof  was  unnecessary.  Such  beingthc  technical,  and,  as  it  seemed  to  me,  purely 
formal,  nature  of  the  objections,  I  must  say  that  I  was  surprised  to  hear  counsel  at  the 
bar  insist  that  those  votes  must  now  be  rejected.  I  had  not  then  examined  the  act, 
and  it  was  contrary  to  all  my  notions  of  the  intention  and  effect  of  election  laws,  de- 
■  rived  from  the  decisions  of  this  and  other  court-s  upon  other  statutes  on  the  same  sub- 


432  DIGEST  OF  ELECTION  CASES. 

ject.  I  supposed  the  question  before  the  courts  always  was,  who  received  the  greatest 
number  of  votes  for  the  ofBcf  from  the  legally  qualified  votei-s,  without  regard  to  any 
matter  of  mere  form  or  want  of  form  in  the  receiving,  canvassing,  or  return  of  the 
votes ;  and  that  to  hold  the  contrary  would  be,  .is  has  been  very  pertinently  said,  to 
place  a  higher  value  on  the  statute  regulation  than  on  the  right  itself— to  sacrifice 
substance  to  form.  This  construction  of  former  statutes,  that  they  Avere  directory 
and  not  imperative,  and  therefore  not  jurisdictional  on  the  part  of  the  oiJicers  conduct- 
ing the  elections,  is  well  known.  For  the  sake  of  justice  upon  the  facts  here  pleaded 
I  regret  that  this 'act  does  not  admit  of  the  same  construct  io.  It  seems  certainly  a 
very  severe  regulation  which  excludes  the  votes  of  legally  qualified  voters  under  siich 
circumstances.  Bnt  on  examining  the  act  I  am  satisfied  that  it  cannot  be  so  con- 
strued. It  is  essentially  an  imperative  statute,  and  deprives  the  inspectors  of  all  juris- 
diction to  receive  the  votes  of  unregistered  voters,  uuless  the  conditions  as  to  the 
afiidavit  and  oath  are  fully  complied  with.  And  first  it  is  to  be  observed  that 
there  is  a  material  ditference  between  this  and  former  statutes.  They  were  regula- 
tions of  the  time  and  manner  of  conducting  elections,  designed  for  the  government 
of  the  otHcers  having  charge  of  the  polls.  No  duty  was  imposed  upon  the  voters 
except  that  of  going  to  the  polls  and  depositing  their  votes.  It  was  considered  that 
the  voters  ought  not  to  forfeit  their  privileges  or  lose  their  votes  by  reason  of  the  mis- 
takes or  misconduct  of  the  officers,  which  it  was  out  of  the  power  of  the  voters  to  rem- 
edy or  prevent.  By  this  act,  however,  every  voter  is  made  or  may  become  an  agent  in 
the  execution  of  the  law.  Copies  of  the  register  as  made  by  the  board  are  tiled  in  the 
office  of  the  town,  village,  or  city  clerk,  and  posted  in  some  conspicuous  place  in  the 
room  in  which  the  meeting  is  held,  so  as  to  be  accessible  to  any  elector  who  may  desire 
to  examine  the  same  or  make  copies  thereof.  On  Tuesday  preceding  the  general  elec- 
tion a  meeting  of  the  board  of  registry  is  held  at  the  place  designated  for  holding  the 
polls  of  election,  for  the  purpose  of  revising,  correcting,  and  completing  the  lists.  Any 
elector  of  the  district  whose  name  has  been  omitted  may  appear  at  such  meeting  and. 
cause  the  same  to  be  entered  upon  the  register.  If  he  does  not  so  appear,  and  still 
desires  to  vote,  he  must  furnish  the  inspectors  at  the  polls  his  affidavit,  giving  his 
reasons  for  not  appearing  on  the  day  for  the  correction  of  the  register,  and  likewise 
prove  by  the  oath  of  a  householder  of  the  district  that  he  knows  him  to  be  an  inhab- 
itant of  the  district,  and,  if  in  an  incorporated  village  or  city,  give  his  residence  within 
the  district.  In  this  matter  of  a  voter  whose  name  has  been  omitted,  and  who  has  not 
appeared  on  the  day  for  the  correction  of  the  register,  the  burden  of  answering  the 
requirements  of  the  law  by  furnishing  the  affidavit  and  proof  is  thrown  upon  the  voter 
himself.  He  is  presumed  to  know  the  law,  and  must  go  to  the  polls  prepared  to  comply 
with  its  conditions ;  and  if  he  does  not,  and  his  vote  is  lost,  it  may,  so  far  as  it  is  the 
fault  of  any  one,  with  justice  be  said  to  be  his  own  fault.  It  is  in  the  nature  of  a  pen- 
alty imposed  by  the  law  for  his  neglect  to  do  what  is  required  of  him.  The  inspectors 
cannot  receive  his  vote,  and,  if  they  cannot,  it  cannot  afterwar<i«  be  received  and  counted 
by  the  courts. 

And  next  it  is  to  be  observed  that  it  is  a  negative  statute.  It  has  been  said  on  very 
high  authority  that  negative  words  will  make  a  statute  imperative.  (Dwarris  on  Stat- 
utes, 715;  7  Law  Lib.,  55,  and  cases  cited.)  The  words  of  the  act  are :  "No  vote  shall 
be  received  at  any  annual  election  in  this  State  unless,"  A-c.  It  is  difficult  to  conceive 
-any  language  more  strongly  imperative  than  this.     (21  Wisconsin,  pages  568-9-74>-71.) 

In  the  Philadelphia  ^'■Locust  ward  case,^  where  the  polls  had  been 
kept  open  and  votes  received  after  the  hour  prescribed  by  the  statute, 
Judge  Parsons  (another  eminent  Pennsylvania  jurist,  who  lias  been  in- 
dorsed in  the  hightest  terms  by  the  counsel  on  both  sides  of  this  case  in 
the  course  of  their  arguments),  after  showing  that  the  direction  to  close 
the  polls  at  10  p.  m.  was  imperative,  closes  an  able  and  exhaustive  opin- 
ion, in  which  the  whole  court,  then  consisting  of  five  law  judges,  con- 
curred (having  previously  distinguished  the  case  then  before  the  court 
from  one  where  the  number  of  votes  thus  illegally  received,  counted, 
and  returned  was  clearly  ascertained  to  be  less  than  the  certified  major- 
ity), as  follows : 

But  where  the  majority  for  the  candidate  is  small,  and  the  evidence  of  such  a  char- 
acter as  to  render  it  uncertain  as  to  the  number  of  votes  polled  after  the  hour  when 
the  election  should  have  been  closed,  when  there  is  imprecision  as  to  the  true  state  of 
the  case  and  the  result  rendered  thereby  uncertain,  and  it  is  thereby  rendered  doubtful 
who  has  a  majority  of  the  votes.polled  within  the  time  prescribed  by  law,  then  in  such 
a  case,  it  is  unquestionably  our  duty  to  set  the  election  aside,  and  refer  the  election  back 
to  the  people.  In  all  these  principles  the  whole  court  fully  concur,  a  nd.  we  settle  it  as  the  laio, 
so  far  as  our  judgment  makes  it  certain." 


CL'RTLN        -      MiCUM.  433 

See  also  Cusbiiiif's  (Mass.)  Electiou  Cases,  Dighton  case,  175,  &c. ; 
Aiidovor  case,  207.  See  also  1  Brewster  {ante),  179,  180.  Wlieelock's 
case  (1  Norris,  299),  cited  and  relied  lipon  by  the  connsel  for  the  sitting 
member  ou  account  of  having  been  subsequent  to  the  adoption  of  the 
new  constitution  of  Pennsylvania,  is  in  full  a<)cord  on  this  point  with 
the  earlier  cases     We  quote: 

Wheu,  however,  it  is  alleged  that  there  is  actual  fraud  iu  the  electiou,  or  that  the 
ballot-box  ha«  been  tauipered  with,  or  illegal  voten  received,  or  the  carele««  or  fraudu- 
leut  acts  of  the  officers  hare  mixed  and  tonfused  the  ballola.  the  duty  of  the  court  is 
equally  plain,  and  every  legal  facility  should  be  afforded  to  purge  the  poll:  and  when 
the  acts  of  the  officers  are  so  fraudulent  and  irregular  that  the  result  cannot  beasoertained, 
then  the  entire  poll  is  rejected. 

The  contestant  alleges,  independently  of  the  non  registered  vote,  that 
he  has  proven  240  illegal  vot^^s  to  have  been  cast  for  the  sitting  mem- 
ber and  a<lmits  that  01  have  been  shown  to  have  been  received  by  him- 
self, which  would  elect  hiui  by  99  majority,  provided  the  remaining  votes 
returned  for  him  after  deducting  these  01  were  all  cast  by  duly  qualtted 
voters,  which  he  does  not  claim  to  have  shown  by  legal  evidence. 

On  the  other  hand,  the  sitting  member  admits  that  29  illegal  votes 
were  i)roven  to  have  been  receivetl  by  him,  not  considering  the  non- 
registered  vote,  but  claims  that  he  has  shown  by  competent  evidence 
that  328  illegal  votes  were  cast  for  his  opponent,  which  would  make  his 
majority  379,  provided  the  votes  remaining  after  de<lucting  these  29 
were  all  cast  by  duly  qualified  voters,  which  he  on  his  part  does  not 
claim  to  have  shown  by  any  evidence  in  the  case. 

But  when  we  take  into  consideration  the  number  of  non-registered 
votes,  or  the  vote's  cast  by  persons  whose  names  do  not  appear  upon  the 
registry  list,  and  who  did  not  furnish  the  j)roof  of  right  to  vote  re- 
quired by  the  statute,  which  by  the  contestee's  brief,  Appendix  B,  ap- 
pear to  be  over  500,  we  cannot  concede  either  the  contestant's  claim  of 
99  majority  or  the  contestee's  claim  of  379  majority  of  the  legal  votes 
cast,  for  the  reason  that,  conceding  all  the  coutestee  claims,  yet  we 
must  determine  what  disposition  shall  be  made  of  the  non-registered 
vote,  which  is  much  greater  than  the  majority  claimed  by  the  sitting 
member. 

It  is  contended  by  contestee's  counsel  that  the  contestant  failed  to 
use  due  diligence  in  this,  that  he  did  not  cause  the  ballots  to  be  pro- 
duced, and  thus  show  for  whom  the  non-registered  electors  votetl,  and 
that  contestant's  resistance,  through  his  counsel,  to  the  legal  proceed- 
ings instituted  by  coutestee  for  the  production  of  the  ballots  was  evi- 
dence of  his  well  grounded  fears  that  the  facts  when  disclosed  might 
show  that  he  was  not  elected. 

These  objections  to  contestant's  right  to  the  seat  would  have  been 
well  taken  were  it  not  for  the  fact  that  the  4,000  printed  pages  of  evi- 
dence iu  this  case  show  most  extraordinary  diligence  on  the  contest- 
ant's part  to  account  for  and  explain  every  alleged  illegal  voter,  and 
1,100  pages,  comprised  iu  part  4,  are  almost  exclusively  devoted  to  evi- 
dence taken  to  explain  for  whom  the  non-registered  persons  cast  their 
ballots.  But  notwithstanding  the  immense  mass  of  testimony  taken,  it 
a])pears  that  the  great  number  of  voters  in  question  rendered  it  impos- 
sible within  the  time  prescribed  by  law  for  taking  testimony  to  explain 
for  whom  all  the  non -registered  persons  voted.  Whenever  it  was  pos- 
sible to  exi)lain  for  wiiom  non-registered  persons  voted  such  explana- 
tion has  been  given,  and  the  voter  when  found  to  be  duly  qualified  has 
been  taken  from  the  non-registered  list,  and  such  list  still  remaining  re- 
H.  Mis.  58 28 


434  DIGEST  OF  ELECTION  CASES. 

lates  to  those  in  whose  cases  no  evidence  appears  explaining  how  they 
cast  their  votes.  It  is  true  that  the  record  fails  to  disclose  for  whom 
these  persons  voted,  and  if  the  failure  is  to  be  charged  to  any  one,  the 
contestee  is  equally  at  fault  with  the  contestant.  They  are,  therefore, 
both  in  such  detault  that  neither  has  the  right  to  claim  the  seat  when 
it  appears  that  there  are  illegal  votes  in  the  returns  unaccounted  for 
which  are  greater  in  number  than  the  returned  majority-  of  the  sitting 
member.  The  people  of  the  district  have  rights  which  cannot  be  con- 
promised  by  any  failure,  whether  avoidable  or  unavoidable,  either  of  the 
contestant  or  the  contestee.  They  have  the  right  to  be  represented  by 
the  person,  and  no  other,  who  has  received  a  majority  of  the  legal  votes 
of  the  district. 

It  having  been  determined  that  a  large  number  of  persons  voted  at 
the  election  who  did  not  comply  with  the  statute  as  to  the  proof  of 
their  right  to  vote,  and  the  number  of  such  ballots  cast  being  largely 
in  excess  of  both  the  returned  majority  of  the  sitting  member  or  the 
revised  majority  which  he  claims  in  his  briefs,  and  the  evidence  not 
showing  for  whom  such  votes  were  cast,  we  must  determine  upon  what 
rule  the  polls  must  be  purged  of  such  illegal  non-registered  votes. 
McCrary,  in  his  Treatise  on  Elections,  section  300,  page  225,  lays  down 
the  following  rule: 

It  would  seem,  therefore,  that  iu  a  case  where  the  number  of  bad  votes  proven  is 
sufficient  to  aiSfect  "^he  result,  and  in  the  absence  of  any  evidence  to  enable  the  court 
to  determine  for  whom  they  were  cast,  the  court  must  decide  upon  one  of  the  three 
following  alternatives,  viz: 

1.  Declare  the  election  void. 

2.  Divide  the  illegal  vot«s  between  the  candidates  in  proportion  to  the  whole  vote 
of  each. 

3.  Deduct  the  illegal  vote  from  the  candidate  having  the  highest  vote. 

And  it  is  clear  also  that  where  in  such  a  case  no  great  public  inconvenience  would 
result  from  declaring  the  election  void  and  seeking  a  decision  by  an  appeal  to  the 
electors,  that  course  should  be  adopted. 

It  will  be  seen  from  all  the  authorities  that  where  a  new  election  caiL 
be  held  without  injury  it  is  the  safest  and  most  equitable  rule  to  de- 
clare the  election  void  and  refer  the  question  again  to  the  people  in  all 
cases  where  there  are  a  greater  number  of  illegal  votes  proven,  but  for 
whom  they  vot^d  does  not  appear,  than  the  returned  majority  of  the  in- 
cumbent. In  this  case,  it  appearing  that  a  number  of  votes  many  times 
greater  than  the  official  majority  of  the  sitting  member  were  illegally 
received,  counted,  and  returned,  in  violation  of  the  constitution  and 
mandatory  statutes  of  Pennsylvania  which  were  adopted  for  the  i)ur- 
pose  of  securing  the  purity  of  the  ballot-box  and  preventing  frauds  at 
elections,  and  the  true  result  of  the  election  by  the  legal  voters  of  the 
district  has  not  heretofore  been  ascertained,  and  cannot,  from  the  na- 
ture of  the  case,  be  ascertained  upon  the  facts  presented  in  the  record, 
your  committee  recommend  that  the  election  be  declared  void,  in  order 
that  the  people  of  the  twentieth  Congressional  district  of  Pennsylvania 
may  have  an  opportunity  of  again  expressing  their  choice  for  a  Eepre- 
sentative  in  Congress.  Your  committee  therefore  recommend  the  adop- 
tion of  the  following  resolution: 

Resolved,  Th'dt  the  election  held  in  the  twentieth  Con gressipnal  district 
of  Pennsylvania  in  IS^ovember,  1878,  for  a  member  of  this  House,  be, 
and  the  same  is  hereby,  declared  null  and  void,  and  the  seat  now  occu- 


CURTIN   V.<.    YOCUM.  435 

pied  by  Setli  H.  Yocum  declared  vacant  until  filled  by  the  people  of 
said  district  in  conformity  with  law. 
All  of  which  is  resipectfnlly  submitted. 

WILLlAil  M.  SPRINGER. 

VAN  II.  MANNING. 

ALVAH  A.  CLARK. 

EMORY  SPEER. 

W.  G.  COLERICK. 

R.  F.  ARMFIELD. 

F.  E.  BELTZ HOOVER. 

SAMUEL  L.  SAWYER. 


VIEWS  OF  THE  UyDERSIGNED  MEMBERS  OF  THE  COMMITTEE  ON  ELEC- 
TIONS IN  THE  CONTESTED-ELECTION  CASE  OF  CCRTIN  V.   YOCUM. 

The  undersigned  have  not  been  able  to  read  all  the  testimony  in  this 
ease ;  they  were  not  on  the  subcommittee  to  whom  it  was  referred,  and 
from  whom  it  was  reported  to  the  full  committee  as  depending  upon 
Questions  of  law  arising  from  facts  said  to  be  undisputed  by  both  par- 
ties.    To  the  general  reasoning  of  the  report  of  the  minority  of  the  com- 
mittee we  assent.     We  think,  however,  that  the  registry  law  of  1874  is 
a  valid  law  under  the  constitution  of  1873.     We  think  also  that  the  re- 
quirements in  that  law  of  affidavits  from  persons  not  on  the  registry  list 
in  order  to  enable  them  to  vote  are  mandatory,  and  that  the  require- 
ments for  the  return  of  papers,  affidavits,  &c.,  are  directory  ;  that  as  it  is 
made  a  crime  on  the  part  of  the  election  officers  to  permit  a  non-regis- 
tered person  to  vote  without  requiring  the  legal  proof  of  qualifications, 
the  strong  presumption  is,  in  the  absence  of  evidence,  that  such  officers 
have  properly  performed  their  duties  in  that  respect.    The  law  of  Penn- 
sylvania requires  that  the  elections  be  held  by  one  judge  and  two 
inspectors,  and   that  on  petition  of  five  or  more  citizens  two  over- 
seers of  election  of  difierent  political  parties  be  appointed.    These  are 
the  election  officers.     Each  inspector  appoints  a  clerk.     After  the  elec- 
tion is  finished,  the  ballot-boxes  containing  "  the  tickets,  list  of  voters, 
and  other  papers,"  securely  sealed,  must  be  delivered  to  the  mayor  and 
recorder  of  cities,  and  in  counties,  townships,  and  boroughs  to  such  person 
as  the  court  of  common  pleas  may  appoint  at  a  place  provided,  whenever 
the  authorities  of  such  city,  county,  township,  or  borough  have  provided  a 
place  therefor,  who  shall  "keep  the  same  to  answer  the  call  of  any  court 
or  tribunal  authorized  to  try  the  merits  of  such  election.''     If  no  such  per- 
son is  appointed,  then  we  understand  that  they  must  be  delivered  to  the 
nearest  justice  of  the  peace.    The  affidavits  of  non-registered  voters  are 
required  to  be  filed  by  the  return  judge  with  the  prothonotary,to  remain 
on  file  in  his  office  subject  to  examination  as  other  election  papers  are. 
The  ofticers  of  election  at   the  close  of  the  polls  count  the  votes ; 
make  triplicate   returns,   with    a   return   sheet  in   addition ;   declare 
publicly  the  votes,  and  post  up  the  same  on  the  door  of  the  election 
house.     The  triplicate  returns  are  inclosed  each  in  ajj  euveloi)e  and 
sealed,  and  one  envelope,  with  the  uusealed  return  sheet,  containing  also 
one  list  of  voters,  tally-papers,  &c.,  is  given  to  the  judge,  and  another 
to  the  minority  inspector.     These  judges,  who  are  the  judges  of  elec- 
tion, and  are  elsewhere  called  return  judges,  are  required,  in  some  cases 
on  the  first  day  and  in  others  on  or  before  the  second  day  after  the 
election,  to  deliver  said  returns  to  the  prothouotary  of  the  court  of  com- 


436  DIGEST    OF    ELECTION   CASES. 

mon  pleas  of  the  county,  aud  ou  12  o'clock  of  said  second  day  the 
prothonotary  is  required  to  present  said  returns  to  the  court  of  common 
j)leas,  who  canvass  the  returns..  In  case  any  return  is  missing,  or  in 
case  of  complaint  by  a  qualified  elector  charging-  palpable  fraud  or 
nnstake,  or  when  fraud  or  mistake  is  apparent  on  the  return,  and  if  in 
the  judgment  of  the  court  it  shall  be  necessary  to  a  just  return,  the 
<}ourt  is  required  to  issue  summary  i)rocess  against  the  election  officers 
-and  overseers  to  bring  them  forthwith  into  court,  with  all  election 
pa|)ers  in  their  possession — 

And  if  palpable  mistake  or  fraud  shall  be  discovered,  it  shall,  iipou  such  hearing 
as  may  be  deemed  necessary  to  enlighten  the  court,  be  corrected  by  the  court,  andao 
cei'titied;  but  all  allegations  of  palpable  fraud  or  mistake  shall  be  decided  by  said 
court  within  three  days  after  the  day  the  returns  are  brought  into  court  for  computa- 
tion, and  the  said  inquiry  shall  t)e  directed  only  to  palpable  fraud  or  mistake,  and 
shall  not  be  deemed  a  judicial  adjudication  to  conclude  any  contest  now  or  hereafter 
to  be  provided  by  law.  And  the  other  of  said  triplicate  returns  shall  be  placed  in  the 
box  aud  sealed  up  with  the  ballots.     (Registry  law,  lc;74.) 

It  is  to  be  noticed  that  it  is  not  the  election  officers,  but  only 
'one  of  them,  viz,  the  return  judge,  who  is  required  to  file  the  affidavits 
and  other  papers  with  the  prothonotary,  and  within  two  days  after  the 
election  the  court  of  which  the  prothonotary  is  clerk  are  required  to 
canvass  the  returns,  and  in  case  of  complaint  by  an  elector  or  for  other 
causes,  as  has  been  before  stat<id,  the  court  may  order  all  election  papera 
before  them  and  have  a  summary  hearing.  In  a  case  such  as  this  is,  where 
direct  evidence  was  accessible,  and  in  the  absence  of  any  evidence  that 
the  voters  we  are  considering  were  challenged,  or  that  any  complaint 
was  made  to  the  court,  or  that  any  cause  for  a  summary  hearing  ap- 
peared or  was  shown  to  the  court,  we  think  that  it  is  inadmissible  to 
infer  and  find  that  the  election  officers  committed  the  crime  of  permit- 
ting non-registered  persons  to  vote  without  requiring  affidavits,  merely 
from  the  fact  that  a  copy  of  the  registry  list  obtained  from  the  commis- 
sioners' office  has  less  names  on  it  than  are  ou  the  list  of  voters,  and 
from  the  further  fact  that  either  there  is  no  evidence  that  the  affida- 
vits of  the  non  registered  voters  were  or  were  not  taken,  or  there  is 
evidence  that  these  affidavits  were  not  found  on  file  in  the  office  of  the 
prothonotary.  It  is  wholly  on  this  inference  and  finding,  and  oh  the 
burden  of  proof,  that,  as  we  understand,  the  foundation  of  the  report  of 
the  majority  of  the  committee  rests.  The  majority  also  adopt  the  theory, 
not  of  throwing  out  the  precincts  the  legal  votes  of  which  they  find 
to  be  uncertain,  but  of  declaring  the  whole  election  void.  They  also  do 
not  undertake  to  apportion  the  presumed  illegal  votes. 

In  Centre  County  it  is  said  in  the  brief  of  the  contestee,  j).  24,  that  the 
-registry  list  used,  and,  as  we  understand,  required  to  be  put  in  the  ballot- 
box,  was  received  by  the  election  officers  directly  from  the  assessors, 
^o  that  the  copy  from  the  commissioners'  office  would  not  necessarily 
contain  the  names  Avhich  the  assessors  were  authorized  and  required  by 
law  to  add.  The  evidence  that  in  some  precincts  the  affidavits  were  put 
in  the  ballot-boxes  is  referred  to  in  the  report  of  the  minoritj". 

That  direct  evidence  was  easily  obtainable  by  the  contestant  from  the 
iballot-boxes  to  show  how  every  presumed  or  proved  illegal  voter  voted, 
as  well  as  to  show  the  discrepancy  between  the  registry  lists  actually 
used  at  the  polls  and  the  list  of  voters,  appears  from  the  statutes  here- 
-after  cited.  It  also  appears  that  the  election  officers  could  be  compelled 
to  testify  whether  they  took  affidavits  or  not,  in  addition  to  any  testi- 
mony that  might  have  been  obtained  from  the  alleged  illegal  voters  or 
any  other  person,  and  in  addition  to  theevidence  of  the  takingof  affidavits 
tvhich  an  examination  of  the  ballot-boxes  might  have  disclosed. 


CDRTIN   VS.    YOCUM.  437 

The  eighth  section  of  the  rejiristry  hiw  of  1874  requires  that  '•  every 
ballot  voted  shall  be  uuinbered  in  the  order  in  which  it  shall  be  received^ 
and  the  number  recorded  by  the  clerks  on  the  list  of  voters  o])posite  the 
name  of  the  elector  from  whom  received.''  The  ballot-boxes  should  con- 
tain, besides  the  ballots,  '•  the  list  of  voters  and  other  papers,"  and  are 
required,  as  has  been  stated,  to  be  kept  securely  bound  with  tape  and 
8eale<l,  to  "answer  the  call  of  any  court  or  tribunal  authorized  to  try  the- 
merits  of  such  election,"  unless  when  required  for  the  purpose  of  hold- 
ing another  election,  and  then  on  the  morning  of  such  election  all  the 
contents  of  the  ballot-boxes  are  to  be  burned  and  totally  destroyed. 
(Section  13  of  the  registry  law.)  We  understand  this  thirteenth  section 
to  mean  that  if  the  ballot-boxes  are  "  called"  by  any  proper  court  or  tri- 
bunal authorized  to  try  the  merits  of  such  election  before  they  are  re- 
quired to  be  used  at  the  subsequent  election,  then  they  are  to  l>e  held  to 
answer  such  call;  otherwise  the  old  ballot-boxes  are  used  at  the  election 
to  be  held,  the  contents  being  destroyed  on  the  morning  of  such  election. 

An  insi)ection  of  the  ballots  in  the  boxes  and  a  comparison  with  the 
list  of  voters  by  the  numbers  would  show  how  every  i>erson  voted.  The 
opening  of  the  ballot-boxes  would,  of  course,  also  show  whether  any 
affidavits  had  been  put  in  as  a  part  of  the  '*  other  papers." 

The  nineteenth  section  of  this  registry  law  provides  that  "in  trials 
of  contested  elections,  and  in  all  proceedings  for  the  investigation  of 
elections,  no  person  shall  be  permitted  to  withhold  his  testimony  on  the 
ground  that  he  may  criminate  himself  or  subject  him  to  public  infamy, 
but  such  testimony  shall  not  afterwards  be  used  against  him  in  any 
judicial  proceedings  except  for  perjury  in  giving  such  testimony."  (See 
also  sections  103  and  859,  Revised  Statutes  United  States.) 

Illegal  voters  can  be  compelled  to  testify  for  whom  they  voted. 

The  careful  provisions  of  the  Pennsylvania  election  laws  were  framed 
apparently  for  the  purpose  of  making  it  possible  in  every  case  to  ascer- 
tain what  illegal  votes  were  cast,  and  for  whom  cast,  so  that  in  each 
piecinct  the  poll  could  be  purged  of  the  illegal  voters. 

The  burden  of  proof,  even  if  the  doctrine  of  declaring  an  uncertain 
election  void  be  a<lopted,  is,  we  think,  as  stated  by  the  minority,  on  the 
contestant  to  show  that  more  illegal  votes  than  the  returned  majority 
of  the  sitting  member  were  cast,  and  either  that  they  were  cast  for  the 
sitting  member  or  that  it  is  impossible  to  ascertain  for  whom  they  were 
east,  and  this  impossibility  is  an  actual  impossibility  arising  from  thecir- 
cnmstances  of  the  case,  which  could  not  have  been  remedied  by  the  use 
of  due  diligence,  and  not  an  impossibility  arising  wholly  from  the 
absence  of  evidence  that  could  have  been  taken.  The  i)arty  having  the 
burden  cannot  by  his  own  neglect  create  the  impossibility.  The  report 
of  the  majority  on  this  point  cites  McCrary  on  Elections,  page  225,  sec- 
tion 3(K»,  but  that  report  does  not  quote  what  almost  immediately  follows 
the  clause  quoted,  viz: 

Let  it  l>e  understood  that  we  are  here  referring  t<»  a  case  where  it  is  found  to  be 
impossible  by  the  use  of  due  dilii^ence  to  show  for  whom  the  illegal  votes  wore  cast. 
If  iu  any  given  case  it  be  shown  that  the  proof  was  within  the  reach  of  the  party  whose 
duty  it  was  to  produce  it,  and  that  he  neglected  to  produce  it,  then  he  may  well  be  held 
answeral>le  for  his  own  neglect;  and  because  it  was  his  duty  to  show  for  whom  the 
illegal  rotes  were  cast,  and  because  he  might  by  the  use  of  reasonable  diligence  have 
made  this  showing,  it  may  very  properly  be  said  that  he  should  suffer  the  loss  occa- 
sioned by  deilnctiug  them  from  his  own  vote. 

On  page  227  Mr.  McCrary  says  : 

We  think  tho^  safer  rule  would  be  for  the  contestant  to  show  not  only  that  a  certaitt 
number  of  illegal  votes  were  poll.^-d,  but  also  to  show,  if  he  can,  that  they  were  cast 
for  his  oT>i»onent.     It  is  not  intended  by  this  to  assert  that  the  rule  above  quoted  from 


438  DIGEST  OF  ELECTION  CASES. 

Daffey's  case  is  positively  erroneous,  but  only  to  intimate  a  doubt,  and  to  express 
the  opinion  that  the  ordinary  principle  which  requires  the  party  holding  the  affirm- 
ative to  prove  the  facts  and  all  the  facts  necessary  to  make  out  his  case  is  the  better 
rule,  and  that  it  will  in  all  cases  be  safer  to  follow  it. 

Ill  this  case  the  facts  set  out  in  tlie  report  of  the  minority  show  pe- 
culiar reasons  why  tlie  opinion  expressed  by  Mr.  McOrary  should  be 
adopted. 

The  forty  days  given  by  the  statute  of  the  United  States  to  the  con- 
testant to  take  his  testimony-in-chief  expired  on  the  18th  day  of  Febru- 
ary, the  day  of  the  election  of  certain  township  and  other  officers  in 
Pennsylvania.  The  time  of  the  taking  of  testimony  by  the  contestee  did 
not  begin  until  the  day  after  said  election.  Unless  the  ballot  boxes 
could  be  held  "  to  answer  the  call  of  any  court  or  tribunal  authorized  to 
try  the  merits  of  such  election"  before  the  morning  of  the  18th  day  of 
February,  the  contents  of  the  ballot-boxes  would  be  totally  destroyed. 
The  contestant  not  only  took  no  steps,  either  by  asubpcena  duces  tecum 
in  this  case  or  by  an  application  to  a  court  of  general  equity  jurisdiction, 
to  preserve  the  contents  of  the  ballot-boxes,  but  resisted  the  attempt 
made  by  the  contestee  to  have  them  preserved  in  certain  counties,  as 
set  out  in  the  report  of  the  minority. 

This  case  is  so  voluminous  as  to  require  many  weeks  to  read  the  tes 
timony  and  determine  all  the  controverted  facts  alleged  to  be  material 
by  one  party  or  the  other.  On  the  facts  reported  to  be  conceded  or  un- 
disputed by  both  parties,  which  are  the  foundation  of  the  reports  made 
to  this  House,  we  think  the  election  ought  not  to  be  declared  void,  and 
uo  one  contends  that  on  these  facts  Mr.  Ourtin  ought  to  be  seated.  If 
the  House  is  to  take  final  action  on  the  case  upon  the  reports  now  made, 
we  think  the  resolution  reported  by  the  minority  should  be  adopted. 

W.  A.  FIELD. 
E.  OVERTON,  Jr. 
J.  H.  CAMP. 


DONNELLY    VS.    WASHBUEN.  '    439 

IGNATIUS  DONNELLY  vs.  WILLIAM  D.  WASHBirRN. 

Third  Congressional  District  of  Minnesota. 

Oharges  of  bribery  and  coercion  ami  lutnimlatiori  ot  votens,  and  the  countinjr  of 
illegal  votes  by  the  canvassing  officers. 

Held,  That  bribery  was  committed  on  l>ehalf  of  eontestee,  and  that  bribery  com- 
mitted by  eontestee,  or  by  any  agent  of  eontestee,  with  or  without  the  knowledge 
or  direction  of  his  principal,  renders  the  election  void. 

Held,  That  numbered  ballots  must  be  rejected,  because  the  numbering  of  same  was 
done  to  prevent  a  fair  election  and  to  intimidate  voters. 

Held,  That  where  votes  are  canvassed  and  return  made  by  a  board  constituted  differ- 
ently from  that  provided  by  law  the  returns  must  be  rejected  and  the  vote  thrown 
out. 

Held,  That  the  returns  of  the  votes  cast  in  the  "county  of  Polk  and  Kitson"  must 
be  rejected,  because  there  is  no  "county  of  Polk  and  Kittson"  in  Minnesota,  but 
separate  counties,  Kittson  being  unorganized  and  not  attached  to  Polk  County 
for  any  purpose. 

The  vote  of  Polk  County  alone  cannot  be  determined  from  the  returns  or  the  evi- 
dence. 

[Note. — This  case  was  reported  to  the  House  on  June  16,  1880;  was  recommitted 
to  the  Committee  on  Elections  and  ordered  to  be  printed.  No  further  action  was 
taken  by  the  House  in  this  case.] 


June  16,  1880. — Mr.  Manninct,  ou  behalf  of  the  majority  of  the  Oom- 
mittee  on  Elections,  submitted  the  following 

REPORT: 

Vieics  of  certain  members  of  the  Committee  on  Elections  in  tJie  contested- 
election  case  of  Donnelly  vs.  Washburn^  from  the  third  Congressional 
district  of  Minnesota  : 

The  undersigned  have  carefully  examined  the  questions  of  law  and 
fact  involved  in  the  case. 

BRIBERY. 

The  first  question  which  they  considered  was  the  question  of  bribery. 

They  find  tliat  bribery  was  committed  pn  behalf  of  the  sitting  mem- 
ber, Mr.  WashV)urn,  by  his  friends,  by  members  of  his  district  com- 
mittee, and  by  personal,  political,  and  business  agents;  that  this 
bribery  was  not  confined  to  any  portion  of  the  district,  or  to  any  one 
town  or  county,  but  that  it  extended  throughout  a  region  of  country 
nearly  400  miles  long  and  100  miles  wide  ;  and  they  further  find  that  in 
many  cases  the  bribery  has  been  traced  home  directly  to  Mr.  Wash- 
burn himself.  The  committee  give  herewith  an  abstract  of  the  testi- 
mony in  some  of  these  cases. 

Charles  Berens,  a  Democrat,  the  postmaster  of  the  village  of  North. 


440  DIGEST    OF    ELECTION    CASES. 

Prairie,  Morrison  Coiiuty  {situated  about  100  miles  from  Minneapolis), 
testifies  (pajre  300,  printed  testimony)  that  prior  to  the  election  of  No- 
vember 5, 1878,  he  wrote  and  mailed  a  letter  directly  to  the  sitting  mem- 
her,  Washhnrn,  in  which  he  said  that  he  would  give  his  support  at  the 
election  to  him,  Wasjiburn,  for  $50.  This  letter  evidently  reached  the 
sitting  member,  for  Berens  testifies  that  he  received  a  letter  in  re])ly  to 
it  from  Keith,  the  postmaster  at  Minneapolis,  a  political  friend  of  the 
sittting  member,  in  which  Keith  said  "he  was  glad  that  Berens  would 
work  that  way."  He,  Keith,  further  stated  that  he  would  give  Berens's 
letter  to  J.  V.Brower,  one  of  the  Eepublican  United  States  land  officers 
at  Saint  Cloud,  and  that  Brower  would  attend  to  the  matter.  J.  V. 
Brower  testifies  (page  246): 

Charles  Berens  wrote  a  letter  to  Minneapolis  demanding  $50  for  which  he  was  to 
support  General  Waslihum  [the  sitting  member].  The  letter  was  sent  to  me  by  some 
one  in  connection  with  the  campaign ;  I  can't  say  whether  by  the  committee  or  by 
General  Washburn  or  by  some  one  for  them. 

Brower  admits  the  receipt  of  $50  from  Washburn  or  his  committee,  and 
may  have  gotmore.  Berens  (page  300)  and  Brower  (page  246)  both  agree 
that  Brower  visited  North  Prairie,  Morrison  County,  and  called  on  Ber- 
ens; Berens  says:  "Brower  said  I  should  work  for  Washburn  and  he 
would  see  me  all  right."  He  says  Brower  did  not  pay  him  an}'  money 
because  he,  Brower,  did  not  trust  him — he  thought  he  was  supporting 
Donnelly.    Brower  testifies: 

I  advised  General  Washburn  [the  sitting  member],  or  some  one  for  him,  after  I 
had  been  advised  that  no  arrangements  of  that  character  could  be  entered  into  [that 
is,  the  purchase  of  Berens's  support  for  $50],  or  words  to  that  effect,  that  he  shonld 
not  enter  into  such  arrangements  with  Charles  Berens,  or  any  one  else. 

Here  it  is  clearly  established  that  there  was  a  negotiation  between  a 
Democratic  voter  and  Mr.  Washburn,  the  sitting  member,  the  one  to 
sell  his  vote  (foy  his  vote  is  implied  in  his  "  support")  for  $50,  and  the 
other  to  buy  it.  The  letter  is  answered  for  Washburn  by  Keith,  his 
friend ;  the  proposition  is  accepted  with  thanks,  and  the  letter  is  deliv- 
ered to  a  Federal  official,  who  goes,  with  the  letter  and  with  Washburn's 
money,  or  the  money  of  Washburn's  committee,  in  his  pocket,  to  see  the 
party  and  consummate  the  transaction.  Theofitnse  of  bribery  was  com- 
plete when  one  party  offered  to  sell  his  vote  audthe  other  agreed  to  buy 
it.  (See  Russell  on  Crimes,  volume  1,  page  159;  Hardinge  vs.  Stokes,  1 
M.  &  W.,  233.)  Brower  reports  to  Washburn,  or  some  one  for  him,  that . 
the  "arrangement"  could  not  be  entered  into. 

There  is  no  denial  of  this  testimony  and  no  attempt  to  impeach  Berens 
or  Brower. 

If  Washburn  had  not  been  ready  to  use  money  to  corrupt  the  voters 
of  his  district  he  would  have  resented  the  proposition  made  to  him  by 
Berens  as  an  insult;  on  the  contrary,  he  appears  to  have  been  as  ready 
to  buy  Berens's  vote  as  Berens  was  to  sell  it.  That  Brower  was  Wash- 
burn's agent  clearly  appears ;  and  when  Brower  told  Berens  that  he 
should  work  for  Washburn  and  he  (Brower)  would  "see  him  all  right,'* 
it  was  in  effect  the  same  as  if  Washburn  himself  had  spoken  those 
words.  In  short,  as  Keith  and  Brower  simply  acted  as  agents  for  Wash- 
burn, the  transaction  may  be  thus  briefiy  stated: 

1.  Berens  tells  Washburn  he  will  sell  him  his  vote  for  $50. 

2.  Washburn  thanks  him  and  tells  him  to  go  ahead  and  it  will  be  all 
right. 

Thereisin  thethird  Congressional  district  of  Minnesotaan  unorganized 
county  named  Kittson,  situated  in  the  northwestern  corner  of  the  State, 
and  adjoining  the  line  of  the  British  possessions;  it  is  more  than  400' 


DONNELLY    VS.    WASHBURN.  441 

miles  from  Minneapolis.  In  tlie  fall  of  1878  this  county  was  a  wilder- 
ness; there  were  jirobably.  as  appears  from  the  testimony,  not  ten  aetnal 
settlers  in  the  entire  county  (see  pa<2:es  125-144).  Between  the  8th  and 
the  16th  October,  1878  (paoe  125),  two  men,  named  Arthur  J.  White  and 
E.  P.  Webster,  entered  into  a  contract  with  the  Saint  Paul  and  Pacific 
Kailroad  Company,  which  was  then  constructing  a  railroad  through 
said  county,  to  get  out  cord-wood  for  the  use  of  the  railroad  company. 
Between  the  dates  named  they  collected  together  some  80  or  90 
wood-choppers  in  the  city  of  Minneapolis,  and  proceeded  to  Kittson 
County  to  cut  this  cord-wood.  The  men  so  hired  were  principally  har- 
vest-hands and  trami)s  who  had  not  been  in  the  State  long  enough  to 
vote;  they  were  in  Kittson  County  for  a  temporary  purpose,  and  were 
therefore  not  entitled  to  vote  under  the  laws  of  Miimesota  (see  Kev. 
Stat.  Minn.,  sec.  oij,  page  G6) ;  the  county  was  unorganized,  and  the  election 
precincts  were  established  in  the  couniy  ten  days  before  the  election, 
by  the  governor,  without  authority  of  law,  and  were  therefore  legally 
not  election  precincts;  there  were  no  registration  lists  at  the  polling- 
places;  the  voting  took  i)Iace  in  railroad  depots  or  in  railroad  cars:  there 
were  no  ])roper  ballot-boxes  (cigar  boxes  and  candle  boxes  without 
locks  and  keys,  as  required  by  law,  being  used  as  ballot-boxes);  the 
judges  were  not  sworn,  and,  in  short,  almost  all  the  requirements  of  the 
laws  of  the  State  for  the  holding  of  elections  were  ignored. 

At  one  of  these  j>reciucts,  to  wit.  Tamarack  River,  these  80  or  90  wood- 
choppers,  hired  by  Webster  and  W^hite,  voted.  There  were  only  4  actual 
settlers  (page  125)  in  the  precinct,  and  these  alone  were  presumably  enti- 
tled to  vote.  The  vote  cast  was  109  for  Washburn  and  1  for  Donnelly. 
The  testimony  of  George  C.  Morton  (page  125),  John  Mulvey  (page  120), 
Arthur  J.  White  (page  305),  and  E.  P.  Webster  (page  297)  shows  that 
these  80  or  90  wood-choppers  were  urged  and  requested  by  Webster  and 
White,  the  wood-contractors,  to  vote  for  Washburn;  they  were  told  that 
if  they  voted  for  Washburn  they  would  be  paid  (page  125)  from  $1.65 
to  $2.20  each  for  their  votes;  they  did  vote,  and  they  voted  for  Wash- 
burn, and  they  were  so  paid;  and  they  refused  to  vote  at  all  unless  tliejf 
were  paid  (page  297).  The  total  sum  paid  by  Webster  and  White  to 
these  men  for  their  votes  was  $160  or  $170  (page  307).  It  further  ap- 
pears, by  the  admission  of  Webster,  that  the  contractors  expected  to 
be  repaid  this  money  (page  297)  so  paid  out  for  these  votes. 

It  also  appears  (see  page  121)  that  in  addition  to  the  80  or  90  woo4i- 
choppers  so  bribed  to  vote  for  Washburn,  the  contractors  Webster  and 
White  gave  two  trappers  their  board  for  a  week  on  condition  that  they 
would  vote  for  Wasburn ;  and  they  did  so  vote. 

George  C.  Morton  testifies  (page  126)  that  White  told  him  in  the  pres- 
ence of  Webster  that  they,  Webster  and  White,  were  to  get  $200  for  their 
services  at  the  election  in  behalf  of  Washburn.  The  money  ])aid  out  by 
them  for  votes  was  repaid  to  White,  one  of  the  firm  (see  page  12^),  by 
Major  Hale,  of  Minneapolis,  the  business  manager  of  the  contestee, 
Washburn,  eight  days  atter  the  election,  by  a  check  for  $182;  and  the 
check  was  cashed  for  Whites  by  one  George  B.  Webster,  the  paymaster 
of  the  Minneapolis  and  Saint  Louis  Railroad  Company,  of  which  the 
contestee,  W^ashburn  was  and  is  president.  White  admits  (page  307) 
that  he  was  rejjaid  the  sum  of  $168  or  $172,  being  the  money  so  paid 
for  these  80  or  90  votes,  by  said  George  B.  Webster,  paymaster  of  con- 
testee's  railroad  company.  There  was  no  connection  between  the  Saint 
Paul  and  Pacitic  Kailroad,  for  which  the  wood  was  cut,  and  the  Min- 
neapolis and  Saint  Louis  Railroad,  of  which  contestee  is  president;  the 
one  runs  from  Saint  Paul  northwestwardly  to  British  America  or  Mani- 


442  DIGEST    OF    ELECTION   CASES. 

toba;  the  other  runs  from  Minneapolis  southwardly  to  wards  Saint  Louis; 
and  the  place  where  the  wood  was  cut  was  between  400  and  500  miles 
distant  from  Minneapolis. 

Here,tlien,is  a  case  of  bribery  by  the  wholesale,  and  it  clearly  appears 
that  the  money  that  was  paid  for  the  bribed  votes  was  repaid  in  Wash- 
buni's  office  by  his  business  manager,  by  a  check  which  is  cashed  by  the 
paymaster  of  his  railroad  company. 

Emil  Shagren,  a  Swede,  a  Greenbacker,  a  laboring  man,  resided  at  the 
date  of  the  election  in  que-stion  at  Minneapolis,  Minn,  (page  15).  He 
was  an  active  supporter  of  the  contestant,  Donnelly,  and  had  beena 
delegate  to  the  Greenback  Cojigressional  convention.  About  the  15th 
October,  1878,  a  friend  of  Washburn,  uamed  William  Chase,  urged  him 
to  go  to  Washburn's  office  to  see  Major  Hale,  his  business  manager  (the 
same  person  who  paid  lor  the  80  or  90  bribed  votes  at  Tamarack  River), 
because  Major  Hale  would  "convince"  him  that  he  vshould  vote  for 
Washburn.  Shagren  declined  to  go.  The  invitation  was  several  times 
repeated.  At  length  Shagren  went  to  Washburn's  office.  He  was  met 
by  Major  Hale,  who  was  evidently  prepared  by  Chase  for  the  interview. 
Hale  commenced  by  asking  him  if  he  wanted  greenbacks.  He,  Hale, 
then  referred  to  the  fact  that  Shagren  had  been  a  delegate  to  the  Green- 
■back  convention  and  was  a  supporter  of  contestant,  Donnelly.  Hale 
told  him  that  he  would  see  that  he,  Shagren,  voted  for  Washburn. 
This  ended  the  first  interview  with  Hale .  Soon  after  Shagren  got  out 
of  work.  Chase  again  urged  him  to  go  to  see  Hale,  and  he,  Hale,  would 
^ive  him  "  a  job" ;  and  he  gave  him  a  sealed  letter  to  Hale.  On  the  19th 
October  Shagren  went  to  Washburn^s  office  again.  He  gave  the  letter 
to  Hale;  Hale  read  it  and  went  into  another  room  aud  conferred  in  whis- 
pers, which  the  witness  overheard,  with  C.  C.  Washburn,  brother  of  the 
sitting  member  and  ex-governor  of  Wisconsin.  Hale  then  came  out  of 
this  room  with  a  $5  bank-note  folded  between  his  fingers;  sat  down  be- 
side Shagren,  put  his  hand  on  his  lap,  and  said :  "  Emil,  I  will  tell  you 
what  I  want  of  you;  I  want  you  to  vote  for  W.  D.  Washburn  (the  sit- 
ting member),  and  use  your  influence  and  work  among  your  friends  for 
the  election  of  Governor  Washburn  (the  sitting  member),  aud  I  will 
I)ay  you  $2  a  day  from  now  to  the  close  ol  the  election;"  and  "  he  figured 
it  up  and  said  it  would  be  $36,  besides  my  expenses  and  money  to  spend 
among  the  boys."  "He  told  me  to  bring  my  bill  there  to  Mr.  Wash- 
burn's office  the  day  after  the  election  and  I  would  get  my  pay."  Shagren 
made  no  answer.  Then  Hale  took  the  ^5  banknote,  which  he  had 
brought  out  of  the  room  where  he  conferred  with  the  brother  of  the  sit- 
ting member,  and  delivered  it  to  Shagren,  saying:  "Emil,  here  is $5 ;  go 
and  use  this  among  the  boys,  and  drop  in  occasionally  aud  I  will  give 
you  more." 

It  is  true  that  Shagren  voted,  worked,  and  made  speeches  for  Donnelly 
subsequent  to  this  interview;  aud  in  one  of  these  speeches  and  before 
the  election  he  stated,  publicly,  the  particulars  of  this  attempt  to  cor- 
rupt him  and  secure  his  vote;  but  the  crime  of  bribery  was  complete 
when  Washburn,  in  his  own  office,  through  his  business  manager,  and 
in  the  presence  of  his  brother,  paid  Shagren  $5  and  promised  him  $36 
more,  and  Shagren  accepted  the  $5.  It  is  of  no  moment  whether 
Shagren  intended  to  vote  for  Washburn  or  not,  or  whether  he  did  or  did 
ijot  so  vote.  An  attem])t  was  made  to  impeach  Shagren  by  showing  that 
Le  was  contradicted  by  John  C.  Oleson  and  Ole  H.  Mahler ;  but  Olesou 
(page  92),  while  he  denies  that  he  told  Shagren  that  he  was  paid  %'l  by 
William  Chase  for  his  vote,  admits  that  he  was  paid  $2  by  William 
Chase  for  services  at  the  election;  aud  Mahler  (page  117),  while  he  de- 


DOXNELLY    VS.    WASHBURN.  443 

iiies  thiit  he  tokl  Sha^ron  that  he  liail  received  $25  from  Washburn, 
admits  tliat  he  received  $15  or  $25  from  somebody,  he  declines  to 
say  wliom,  and  lie  declines  to  say  whether  or  not  he  peddled  ticket* 
with  Wasliburn's  name  on  them.  So  that  these  witnesses  confirm  in 
stead  of  im])each  the  substantial  truth  of  Shaj^ren's  testimony.  How 
could  he  have  known  the  facts  stated  unless  these  parties  told  him  ? 

The  proof  in  this  case  seems  to  your  committee  to  be  very  conclusive  ; 
the  party  bribed  was  an  active  «>pponent  of  Washburn  and  warm  sup- 
porter of  Donnelly,  and  these  facts  were  known  to  Washburn's  busi- 
ness manager.  lie  belonged  to  a  different  political ])arty  from  the  sitting 
mcnd^er.  The  bribery  takes  place  in  ^Va8Jllmnis  office  and  in  the  presence 
of  his  brother.  The  witness.  Shagren,  was  coaxed  there  under  the  prom- 
ise of  a  job,  and  advantage  taken  of  the  fact  that  he  was  out  of  work 
iind  poor.  A  distinct  and  deliberate  proposition  is  made  to  him  to  pay 
him  a  given  sum  for  his  vote  and  support,  and  part  of  the  money  is  paid 
to  him. 

Bernard  Cloutier  (see  page  211)  resided  in  Minneapolis  at  the  time  of 
the  election,  and  sold  farm  machinery.  He  was,  and  had  always  been, 
a  Democrat,  and  generally  took  an  active  part  in  politics.  About  a  week 
or  ten  days  before  the  election  he  met  John  Baxter,  a  friend  of  the  sitting 
member.  Cloutier  told  him,  in  answer  to  a  question  by  Baxter,  that  he, 
Cloutier,  did  not  intend  to  take  any  part  in  the  election.  He  says,  "  I 
told  him  that  I  had  made  up  my  mind  to  take  no  part  in  the  election, 
{18  I  had  heretofore  been  promised  a  good  deal  and  never  got  anything 
for  it."  Thereupon  Baxter  requested  witness  to  see  Charles  W.  John- 
son (secretary  of  the  Kei)ublican  central  committee  of  the  third  Con- 
gressional district).  Two  or  three  days  thereafter  Baxter  met  Cloutier 
again,  and  asked  him  if  he  had  seen  Johnson.  Cloutier  said  no.  Bax- 
ter said  that  was  queer,  as  Johnson  had  promised  he  would  see  Cloutier. 
Baxter  then  took  Cloutier  to  the  office  (^  the  sitting  member,  Washburn, 
and  they  told  him  there  that  Johnson  had  just  gone  out.  An  hour  after- 
wards Cloutier  was  in  Christian  &  Dean's  office,  when  a  gentleman 
came  in  and  told  him  that  "  General  Washburn  [the  sitting  member] 
wanttd  to  see  mc  [Cloutier]  at  his  [Washbuni's]  offi^."  Cloutier  went  to 
AVashburn's  office,  and  there  met  Charles  W.  Johnson  and  Dr.  Keith, 
(the  postmaster  at  Minneapolis,  and  the  same  party  who  thanked  Charles 
Berens  for  his  offer  to  sell  his  support  to  Washburn  for  $50).  Johnson 
wanted  Cloutier  to  go  out  and  electioneer  for  Washburn.  Cloutier  said 
lie  would  do  so  if  he  was  i)aid  for  his  time  and  expenses.  Thereupon 
Johnson  told  him  to  start  out.  The  next  day  Johnson  met  Cloutier  at 
the  post-office,  ami  paid  him  $30.  The  following  Wednesday  Cloutier 
met  Johnson  again  at  Washburn^s  office.  "'  I  told  him  I  wanted  some  more 
money.  He  asked  me  how  much  I  wanted,  and  I  told  him  I  wanted 
$20.  Me  [Mr.  Johnson]  went  into  the  next  room  and  commenced  talking 
with  Mr.  nashburn,  the  sitting  member.  He  came  back  and  handed  me 
$20.'' 

The  witness,  Cloutier,  states  in  his  cross-examination  that  he  was  in 
favor  of  Mr.  Washburn  in  the  tirst  place;  but  it  appears  by  his  exami- 
natiou-in-chief  that  he  had  made  up  his  mind  to  take  no  part  in  the 
election,  because  he  had  been  previously  promised  bribes  which  were  not 
l>aid;  and  thereupon  he  was  paid  $50  to  convert  him  from  that  i>osition 
of  neutrality  and  indifference  into  a  warm  supporter  of  the  sitting  mem- 
ber. In  other  words,  the  payment  of  that  sum  of  money  secured  to  Mr. 
Washburn  a  support  and  influence  which  he  would  not  have  had  with- 
•<»ut  it.     It  is  fair  to  i)resume  that  if  the  vote  and  support  of  this  mer- 


444  DIGEST  OF  ELECTION  CASES. 

cenary  politiciau  could  have  been  had  without  the  payment  of  money 
the  $50  would  not  have  been  paid. 

The  contract  of  bribery  was  made  by  the  secretary  of  Washburn's 
committee  in  Washburn's  office,  and  part  of  the  money  was  i)aid  in 
Washburn's  oftice  in  his  i)resence,  and  under  circumstances  which  cre- 
ate a  strong  presumption  that  it  came  from  Waslibuiu's  pocket.  That 
is  to  say,  Cloutier  asks  Johnson  for  $20;  Johnson  goes  to  Washburn, 
and  returns  with  the  money  and  pays  it  to  Cloutier. 

Here,  then,  we  have  four  cases  of  bribery,  involving  90  bribed  votes, 
brought  home  to  the  sitting  member  in  the  clearest  and  most  conclusive 
manner.  In  the  first  case  the  negotiation  is  with  Mr.  Washburn  him- 
self; in  the  next,  the  money  which  bought  the  votes  is  repaid  in  his 
(Wasliburn's)  office  by  his  business  manager;  in  the  third,  the  bribe  is 
offered  and  the  nioney  paid  in  Washburn's  office  by  his  busines.-'  man- 
ager and  in  the  i)resence  of  his  brother;  and  in  the  fourth  case  the 
bribe  is  ottered  and  the  mone^'  i>aid  by  the  secretary  of  Washburn's 
committee  in  Washburn's  office,  and  part  of  the  money  paid  in  Wash- 
burn's presence,  and  probably  out  of  his  pocket,  it.  seems  to  your  com- 
mittee that  this  evidence  is  sufficient  to  convict  Mr.  Washburn  of 
bribery  in  any  court  in  the  world. 

And  yet  in  the  face  of  such  an  array  of  testimony  Mr.  Washburn  is 
tlumb.  He  had  forty  days  in  which  to  rebut  this  testimonj^ ;  he  could 
have  taken  the  stand  himself,  to  explain  or  deny  the  Berens  matter ;  he 
could  have  procured  the  testimony  of  his  business  manager,  Hale,  to 
contradict  8hagren  and  Morton  ;  he  could  have  called  Johnson  to  con- 
tradict Cloutier;  he  could  have  sworn  his  brother,  ex-Governor  C.  C» 
Washburn,  to  deny  that  he  was  present  and  conferred  with  Hale,  and 
also  to  rebut  the  natural  pre8umi)tion  that  he  (C.  C.  Washburn)  fur- 
nished the  $5  with  which  Hale  bribed  Shagren.  He  did  nothing  of 
this  kind ;  he  denied  nothing ;  he  called  not  a  single  witness  to  rebut 
this  or  anything  else  in  the  mass  of  testimony  showing  bribery.  Cer- 
tainly no  lawyer,  and  no  layman  familiar  with  human  nature,  will  j^re- 
tend  that  it  was  Mr.  Donnelly's  duty  to  place  these  parties  who  held  sucb 
close  and  intimate  relations  with  Mr.  Washburn  on  the  witness  stand. 
He  might  just  as  well  be  asked  to  make  Mr.  Washburn  his  witness.  In 
these  matters  he  and  his  friends  were  like  the  Siamese  twins,  living, 
breathing,  and  moving  together.  Every  part  of  this  testimony  was 
brought  home  to  the  knowledge  of  Mr.  Washburn,  as  he  was  represented 
by  counsel  at  the  hearing  of  each  witness.  It  will  not  do  for  Mr.  Wash- 
burn to  say  that  he  did  not  wish  to  "dignify  the  case  of  the  contestant" 
by  calling  witnesses  in  rebuttal.  His  own  character  as  a  man  of  honor 
demanded  some  denial  or  explanation  of  this  testimony,  which  traces 
the  bribery  of  96  voters  right  to  his  own  office,  to  his  business  manager, 
to  his  brother,  and  to  himself.  If  he  did  not  consider  his  own  reputa- 
tion affected  by  such  charges,  he  at  least  owed  it  to  his  constituents, 
and  to  the  Congress  of  the  United  States,  to  prove  that  he  had  not 
gained  a  seat  in  the  House  by  unworthy,  dishonorable,  and  criminal 
practices. 

Having  failed  to  rebut  this  evidence  by  counter  testimony,  the  pre- 
sumption of  law  becomes  conclusive  that  he  did  not  do  so  because  he 
could  not  do  so.  He  concedes  thereby  the  truth  of  every  statement 
made  by  contestant's  witnesses,  and  his  silence  is  an  admission  of  his 
guilt.  It  is  a  w^ell  understood  principle  of  law  that  admissions  of  guilt 
"may  be  implied  from  acquiescence  of  the  party,  whether  it  be  acqui- 
escence in  theconductorlanguageof  another."  (Greenleaf  on  Evidence, 
vol.  1,  sec.  27  and  sec.  197.)     "if  a  material  averment,  well  pleaded,  is 


DOyNELLV    VS.    WASHBURN.  445 

passed  over  by  the  adverse  party,  without  denial,  whether  it  be  by 
ijorift'.-ision,  or  by  pleading  some  other  matter,  or  by  demiining  in  law, 
it  is  thereby  coucliisively  admitted."  {Hid,  sec.  27.)  Aud  in  this  case 
the  faiUire  to  rebut  or  impeach  the  testimony  of  these  witnesses  as  to 
biibery,  is  a  confession  of  the  truth  of  their  statements  and  of  the  guilt 
of  the  party. 

Your  committee  have  dwelt  at  length  upon  these  four  cases,  because 
they  reach  home  directly  to  the  sitting  member;  but  they  constitute 
but  a  small  part  of  the  testimony  showing  bribery. 

At  Crookston,  in  Polk  County,  the  testimony  shows  (page  223)  that  but 
85  legal  votes  were  cast,  while  258  votes  were  returned  as  cast.  A  large 
part  of  these  illegal  votes  were  cast  by  parties  at  work  upon  tlie  con- 
struction of  a  railroad  :  they  were  not  inhabi^ants  of  the  township  j 
they  had  no  right  to  vote  there.  It  is  proved  that  35  or  40  of  these 
were  paid  for  their  votes  by  the  railroad  company;  their  tickets  were 
furnished  them  by  the  agents  of  the  company ;  they  were  Washburn 
tickets,  and  they  all  voted  for  Washburn.  The  men  so  paid  to  vote  for 
Washburn  were  Democrats.  They  were  at  work  shoveling  dirt  around 
the  rour.d  house.  Besides  these,  two  hand-cars,  loaded  with  railroad 
men,  also  voted — about  10  of  them. 

William  Johnson  (see  }>age  190)  was  one  of  a  gang  of  17  railroad  la- 
borers; they  were  at  work  14  miles  away  from  Crookston,  and  outside 
the  election  precinct ;  they  had  no  right  to  vote  at  Crookston,  but  10  of 
them  did  so  vote,  and  they  were  paid  for  tbeir  votes  by  the  railroad 
company  ;  the  agents  of  the  company  furnished  them  with  their  tick- 
ets— Washburn  tickets :  and  they  voted  for  Washburn  ;  they  would  not 
have  voted  at  all  if  they  had  not  been  so  paid  (page  191). 

D.  M.  Bobbins  (page  34),  of  Saint  Paul,  had  a  railrojul  contract  to 
help  build  the  railroa<l  through  Kittson  County;  had  150  men  working  for 
him  15  miles  from  Two  Rivers,  Kittson  County;  about  100  of  these  men 
went  with  him  on  a  construction  train  to  Two  Rivers  to  vote ;  these 
men,  except  about  30  or  40,  did  vote  ;  they  were  all  paid  for  their  votes 
the  same  amount  they  would  have  earned  if  they  had  continued  to 
work ;  the  railroad  company  ran  the  train  for  their  accommodation ;  the 
voting-place  icas  a  railroad  car^  which  stood  on  a  side  track ;  there  was 
no  house  at  Two  Rivers  station  of  any  kind.  As  the  vote  at  Two  Riv- 
ers was  74  for  Washburn  and  1  for  Donnelly,  the  bribed  voters  must 
have  voted  for  Washburn.  It  further  appears  (page  30)  that  the  rail- 
road laborers  working  for  this  witness  at  Tamarack  River  voted  there. 
These  made  up  the  balance  of  the  109  votes  polled  at  that  place. 

Dennis  lleardon  testifies  (^page  144)  that  he  was  one  of  a  gang  of 
more  than  50  railroad  hands  that  voted  between  Middle  River  and  Tam- 
arack River;  at  Two  Rivers  the  voting-place  was  a  box-car,  the  ballot- 
box  was  a  candle-box ;  there  were  no  tickets  there  but  Washburn  tickets. 
These  50  railroad  men  lived  in  box-cars  and  were  moved  forward  as  the 
work  progressed.  They  were  all  paid  for  voting  by  the  railroad  com- 
l)any;  many  of  them  were  Democrats.  There  were  no  houses  in  sight 
at  that  place,  and  of  course  no  residents  of  that  locality. 

This  testiujony  establishes  the  fact  that  at  Crookston,  Tamarack 
River,  and  Two  Rivers,  there  were  101  votes  cast  by  railroad  workmen 
who  were  not  residents  of  those  localities,  were  there  for  a  temporary 
purpose,  and  were  not  entitled  to  vote ;  and  that  they  were  all  paid  for 
their  votes ;  that  they  voted  for  Washbui'u  and  would  not  have  voted  if 
they  had  not  been  paid. 

We  have  seen  that  J.  V.  Brower  (page  244),  one  of  the  United  States 
land  oflScers  at  Saint  Cloud,  Minn,,  was  furnished  with  the  letter  of 


446  DIGEST    OF    ELECTION    CASES. 

Charles  Berens  to  Washburn,  in  which  Berens  oftered  to  sell  his  vote- 
to  Washburn  for  $50.  It  further  ai)pears  that  Brower  received  from 
Washburn,  or  his  committee,  money  to  visit  Berens  and  to  make  a  can- 
vass of  certain  counties;  how  much  does  not  appear,  as  Brower's 
memory  is  very  oblivious  of  these  details.  Brower  admits  (page  245) 
that  he  left  money  at  different  places  in  Todd  and  Morrison  Counties 
during  his  canvass  for  "legitimate  political  purposes";  that  he  did  this 
in  the  interest  of  Mr.  Washburn  ;  and  he,  Washburn,  knew  he  was 
working  for  him  (page  252);  he  visited  live  towns  in  Morrison  County. 
He  considers  it  perfectly  legitimate  to  hire  Democrats  to  work  with  their 
teams  in  behalf  of  the  Republican  party.  He  hired  a  number  of  men 
in  this  way;  he  cannot  remember  how  many;  it  may  have  been  twenty 
or  one  hundred ;  neither  can  he  recollect  whether  he  spent  $50  or  $500^ 
in  this  canvass  of  Morrison  and  Todd  Counties. 

This  testimony  shows  that  an  agent  of  the  sitting  member,  acting  at 
his  request,  with  his  knowledge  and  by  his  authority,  and  furnished  with 
his  money,  or  the  money  of  his  party,  went  out  into  the  counties  of  Todd 
and  Morrison,  120  and  150  miles  from  Minneapolis,  upon  a  mission  ot" 
corruption ;  that  he  bought  up  probably  100  voters  and  spent  probably 
$500  in  the  work ;  and  although  the  events  transpired  but  a  few  weeks 
before  his  testimonj'^  was  taken,  he  pretends  that  he  does  not  remember 
the  names  of  the  voters  he  bought,  the  amount  he  paid  out,  or  the  num- 
ber of  persons  bribed.  The  bribery  was  accomplished  under  the  thin 
disguise  of  employing  Democrats  to  work  at  the  polls  for  the  sitting 
member.  He  admits  that  one  of  the  parties  so  bought  was  George 
Geissel,  of  Xorth  Prairie;  he  paid  him  a  sum  of  money — may  have  been 
$5  or  $20 — for  the  use  of  a  team  (page  24G).  He  paid  Thomas  Kitowski  a 
sum  of  money,  probably  $25  or  $30,  to  peddle  tickets  for  Washburn  at 
the  polls,  and  for  cigars  to  be  furnished  the  voters  (pages  245,  253). 
Kitowski  was  a  Democrat. 

Having  established  the  close  relations  of  Brower  with  thesitting  mem- 
ber, and  his  authorized  agency  for  him,  let  us  follow  him  in  his  canvass : 

John  Fleckenstein  (page  291),  of  Rich  Prairie,  Morrison  County,  a 
farmer:  his  " politics  aint  much";  Brower  called  to  see  him;  he  told 
Brower  he  had  decided  to  take  no  part  in  the  election.  He  subsequently 
received,  he  thinks  from  Brower,  $10  with  a  lot  of  Democratic  tickets 
with  the  sitting  member's  name  on  them.  He  kept  part  of  the  moneys 
he  bought  crackers  and  beer  with  part  and  paid  $5  to  Peter  Virnig. 
The  witness  pretends  that  he  voted  for  Donnelly,  but  the  tone  of  his 
testimony  renders  tin's  doubtful. 

Brower  then  went  to  see  Peter  Virnig  (page  299),  another  farmer 
of  Rich  Prairie,  a  Democrat.  John  Fleckenstein  was  with  him.  Fleck- 
enstein paid  him,  Virnig,  $5,  "for  his  team  and  his  day's  work"  at 
the  election.  With  the  $5  was  a  lot  of  Democratic  tickets  with  Wash- 
burn's name  on  them.  Virnig  also  pretends  that  he  voted  the  straight 
Democratic  ticket. 

Brower  also  called  to  see  Henry  Armstrong  (page  303),  of  Two  Ri  vers^ 
Morrison  County,  a  farmer  and  a  Democrat.  He  testifies  that  Brower 
paid  him  $20  to  work  at  the  polls  for  Washburn.  He  did  work  for 
Washburn,  distributed  his  tickets,  and  the  presumption  of  law  is  that 
he  voted  for  him. 

Thomas  Kitowski  was  subpoenaed  to  testify,  but  refused  to  appear. 
Charles  Berens  testifies,  however  (page  300), that  Kitowski  told  him  that 
Brower  had  paid  him  $50.  Brower  admitted  he  had  paid  him  some 
money,  it  may  have  been  $25  or  $30. 

These  briberies  having  been  committed  by  an  authorized  agent  of 


DONNELLY    VS.    WASHBURN.  447 

tlie  sitting  member,  were,  in  eflfect,  committed  by  the  sitting  member 
himself;  and  the  agent,  Brower,  says  that  he  will  not  swear  that  he  did 
not  bribe  100  persons  in  the  same  way  during  his  canvass  of  Todd  and 
Morrison  Counties,  and  spend  $500  in  doing  so. 

Milo  Porter  (i)age292),  mail  carrier,  of  Little  Falls,  Todd  County,  was 
a  supporter  of  Donnelly.  The  Republican  county  treasurer  of  Todd 
County,  Mr.  Buss,  oflfered  him  $50  if  he  would  abandon  Donnelly  and 
support  Wasliburn.  He  (Buss)  said  he  had  himself  received,  or  was  to 
receive,  $500.  Porter  declined  to  take  the  $50,  and  published  a  card  at 
onee,  before  the  election,  in  the  Little  Falls  Transcript,  reciting  the 
offer  made  him,  and  warning  the  people  of  the  kind  of  means  that  were 
being  employed  to  elect  Washburn.  There  was  no  attempt  made  to 
contradict  Porter's  testimony.  Buss  was  not  called  to  the  witness- 
stand. 

We  pass  from  the  northern  part  of  the  district  to  the  southern  part. 

William  M.Leyde(page48},livesatCottageGrove  Washington  County, 
engaged  in  thrashing-machine  business — a  Republican.  He  saw  Mr. 
Washburn  in  Saint  Paul  shortly  before  the  election.  He  went  to  Min- 
neapolis, to  the  room  of  the  Republican  Central  Committee,  or  a  room 
adjoining.  He  was  there  furnished  with  a  letter  (he  does  not  remember 
whose  name  was  to  the  letter)  to  a  Mr.  Sabin,  of  Stillwater,  requesting 
Sabin  to  employ  him  to  canvass  the  county  (page  49).  He  (Leyde)  un- 
derstood that  $<iOO  was  raised  in  Stillwater  for  political  purposes. 
Armed  with  this  letter,  he  went  to  Stillwater,  and  was  paid  $50  by  Sabin 
and  $15  by  another  party  to  canvass  the  county,  and  thereupon  he 
visited  nearly  all  the  towns  in  the  county  and  hired  men  to  work  at  the 
polls  for  Washburn  with  their  teams.  He  declines  to  say  who  he  hired, 
how  many  he  hired,  or  how  much  he  paid  them. 

We  supplement  Leyde's  testimony  by  the  testimony  of  F.  S.  Meilicke 
(page  52),  one  of  the  county  commissioners  of  Washington  County,  to 
whom  Leyde  stated  that  he  (Leyde)  had  talked  with  Washburn,  and 
Washburn  told  him  -'to  go  to  Sabin,  and  that  the  money  had  been 
placed  in  Sabin's  hands  and  he  would  make  it  all  right  with  him";  and 
that  they  had  raistd  $600  in  Stillwater,  "besides  the  amount  that  Mr. 
Washburn  had  placed  there.''''  He  (Leyde)  said  that  he  had  spent  all  the 
money  so  furnished  him  but  $15  in  hiring  men  to  work  at  the  polls  for 
Washburn ;  he  gave  the  name  of  one  man,  Henry  Monroe,  of  Newport, 
to  whom  he  had  paid  $5  "to  work  at  the  polls  for  Washburn."  All  the 
$600  raised  at  Stillwater,  and  the  money  contributed  by  Washburn,  wa« 
to  be  spent  in  behalf  of  Washburn. 

We  turn  now  to  some  briberies  committed  in  Saint  Paul ;  and  here, 
again,  the  money  paid  is  traced  back  to  Minneapolis,  and  to  the  sitting 
member. 

John  Flahertv  (page  25)  testifies :  Is  a  saloon  keeper  in  Saint  Paul  j 
a  Democrat.  He  went  to  Minneapolis  two  weeks  before  the  election; 
went  to  the  Republican  headquarters;  saw  C.  W.  Johnson,  secretary  of 
the  Republican  Central  Congressional  Committee,  and  the  same  party 
who  acted  as  agent  for  Washburn  in  the  bribing  of  Cloutier.  Johnson 
said  that  Washburn  must  be  elected,  and  asked  witness  if  he  thought 
he  could  get  many  votes  in  Saint  Paul,  and  witness  said  he  thought  he 
could.  Johnson  told  him  that  one  R.  Barden  "  was  their  agent  at  Saint 
Paul,"  and  promised  to  write  Barden  about  Flaherty.  The  day  before 
election  witness  called  on  Barden  and  Barden  paid  him  $10.  Witness 
pretends  that  he  voted  for  Donnelly,  but  admits  that  he  worked  at  the 
polls  part  of  the  time  for  Washburn. 

Abraham  Werfick  (page  28),  of  Saint  Paul,  machinist,  testifies  that 


448  DIGEST  OF  ELECTION  CASES. 

he  also  went  to  Minneapolis  in  October,  before  the  election.  He  made 
it  his  special  business  to  see  Washburn,  and  saw  and  conversed  with 
him ;  he  asked  Washburn  "  who  was  his  friend  down  there'' (in  Saint  Paul). 
Wasliburn  told  him  "he  expected  the  committees  would  take  some  in- 
terest in  him";  "that  Mr.  Barden"  (the  same  party  meutioned  by  Fla- 
herty) "  was  on  some  committee,"  and  he  gave  him  a  letter  of  introduc- 
tion to  Mr.  Barden ;  the  letter  stated  that  Werrick  was  his  ( Washburn's) 
friend.  Witness  presented  Washburn's  letter  to  Barden ;  forgets  what 
conversation  took  place;  but  the  committee  (presumably  the  committee 
of  which  Barden  was  a  member)  asked  him  to  hire  two  men  to  work  at 
the  polls.  He  received  $30 — $10  for  himself  and  $20  to  hire  two  men. 
He  hired  Oluf  Larson  and  Julius  Bjornstad,  and  paid  them  $10  each. 
He  worked  for  the  whole  Republican  ticket.  Prior  to  seeing  Washburn 
and  being  paid  this  $30,  he  had  not  been  supporting  Washburn  (pageSl) ; 
the  men  Larson  and  Bjornstad  were  paid  to  work  for  the  whole  Repub- 
lican ticket.  Larson  (page  27)  is  called  and  admits  the  receipt  of  $10 
from  Werrick,  to  work  for  the  straight  Republican  ticket;  he  did  so  work 
and  voted  for  Washburn.  Bjornstad  (page  21)  testities  to  same  effect; 
he  worked  for  the  whole  Republican  ticket ;  received  $10  from  Wer- 
rick ;  he  claims  to  have  voted  for  Donnelly.  ' 

O.  B.  Wergedahl  (page  20),  of  Saint  Paul,  testifies  that  Werrick  told 
him  he  wanted  him  to  work  for  the  Republican  ticket ;  and  said  that 
he  (Weixick)  saw  Washburn  twice  in  Minneapolis,  and  that  Washburn 
him  (Werrick)  to  Barden,  and  told  him  that  he  (Washburn)  "  had  given 
money  to  Barden  to  spend  in  Saint  Paul  for  his  election.''^  He  wanted 
W^ergedahl  to  work  for  Washburn,  and  told  him  he  had  got  money  for 
Bjornstad ;  witness  refused  to  work  and  vote  for  Washburn. 

This  testimony  seems  conclusive.  Washburn  had  placed  corruption 
funds  in  the  hands  of  R.  Barden,  and  he  and  Johnson,  secretary  of  his 
committee,  refer  parties  to  Barden  for  money ;  and  Barden,  or  some 
member  of  the  committee,  pays  out  money  to  these  parties ;  they  pay 
In  turn  to  others,  and  all  of  them  work  at  the  polls  for  Washburn's 
election. 

Another  Saint  Paul  party,  John  Guiry  (page  22),  admits  the  receipt 
of  $25  from  a  Republican  candidate  for  a  local  office  (State  senate)  to 
•work  at  the  polls  and  peddle  Republican  tickets.  He  pretends  to  have 
voted  for  Donnelly. 

Christian  Heyer,  a  Democratic  German  farmer,  of  Afton,  Washing- 
ton County,  testifies  (page  54,  printed  testimony)  that  he  was  paid  $10 
by  Warren  Getchel,  a  Republican  politician,  and  particular  friend  of 
the  sitting  member.  Getchel  asked  him  if  he  could  support  Washburn. 
Witness  said  he  would.  Getchel  said  he  was  "  a  particular  friend  of 
Washburn,"  and  "  he  wanted  me  to  help  all  I  could ;  he  asked  me  if 
there  were  any  debts  on  our  German  church,  and  that  after  election  he 
would  hand  me  $10  to  use  for  what  purpose  we  thought  best — I  could 
do  with  it  as  I  had  a  mind."  He  does  not  know  what  the  consideration 
was  for  the  $10.  They  have  a  large  German  population  at  Afton,  about 
half  Democrats.     He  worked  and  voted  for  W^ashburn. 

Tolef  G.  Fladeland,  of  Sauk  Center,  Stearns  County,  merchant,  testi- 
fies (page  221,  printed  testimony)  that  he  was  paid  $20  by  Mr.  Cooper, 
chairman  of  the  Republican  county  committee  of  Stearns  County,  to  go 
out  and  peddle  Democratic  and  Republican  tickets  with  Washburn's 
name  on  them.  He  told  Cooper  that  he  was  not  a  politician ;  doesn't 
know  but  he  expressed  himself  in  favor  of  Mr.  Donnelly  during  the  cam- 
paign. At  the  time  Cooper  paid  him  the  $20  he  was  neutral  as  between 
Donnelly  and  Washburn.  He  visited  two  or  three  towns ;  used  his  own 
team;  was  gone  one  day;  expenses  ^l :  profits,  $19. 


DO.^NELLY    VS.    WASHBURN.  449 

The  testimony  of  Nathan  Richardson,  of  Little  Falls,  Morrison  County 
(page  285),  leading  Republican  and  politician  by  trade,  shows  that  the 
editor  of  the  Democratic  pai)er  at  that  j>lace  was  bought  up  to  support 
Washburn;  that  the  sum  paid  was  jjrobably  $125  (page  286) ;  that  it 
came  from  Minneapolis,  from  Loren  Fletcher,  an  active  friend  of  the 
sitting  member  and  a  prominent  Republican  (page  44) ;  and  that  after 
the  payment  of  that  sum  the  said  newspaper  supported  Washburn  and 
denounced  Donnelly.  The  witness  Richardson,  who  conducted  the  sale 
of  this  Democrat  and  his  newspaper,  supported  Washburn,  made  a  can- 
vass of  the  county  in  his  behalf,  spent  $25.  He  admits  the  payment  of 
$7  to  William  Witherall ;  he  did  not  expect  to  be  repaid  ;  thinks  With- 
erall  vote<l  for  Washburn  ;  he  also  paid  $2  or  $3  to  a  man  named  Sloan  ; 
money  has  not  been  repaid  ;  thinks  Sloan  voted  for  Washburn. 

It  will  be  observed  that  in  nearly  every  one  of  these  cases  of  bribery 
committed  throughout  a  region  of  country  half  as  large  as  the  State  of 
New  York,  the  money  paid  is  traced  back  to  the  city  of  Minneapolis, 
the  resi<ience  of  the  sitting  member.  From  this  point  as  a  common 
center,  the  corruption  radiated  in  all  directions  over  the  district;  and 
•when  we  come  to  Minneapolis  all  the  testimonj-  shows  that  it  was  a 
very  hotbed  of  bribery.     We  give  brief  abstracts  of  the  cases  jjroven: 

It  is  shown  (page  80)  that  a  Democrat  named  A.  M.  Schaak,  a  Scan- 
dinavian, was  publishing  a  Scandinavian  newspaper  in  Minneapolis 
during  the  campaign  and  supported  Donnelly  for  Congress  up  to  the 
night  l>efore  the  election  ;  that  night  he  was  announced  to  speak  at  a 
Scandinavian  Democratic  meeting  at  Alinneapolis  in  favor  of  contest- 
ant, Donnelly.  Instead  of  speaking  for  Donnelly,  he  came  out  strongly 
for  Washburn,  and  the  next  day  he  admitted  to  witness  that  he  hiid 
been  paid  $150  for  doing  so.  He  had  a  new  suit  of  clothes  and  a  pocket 
full  of  money.  There  was  no  attempt  to  contradict  this  witness  ;  in  fact, 
counsel  for  the  contestee,  in  their  cross-examination,  seem  to  urge 
that  it  was  perfectly  right  and  legal  to  bribe  Democrats  to  speak  in 
favor  of  Republican  candidates.  It  may  be  said  that  this  testimony  a« 
to  Schaak  is  hearsay  evidence.  The  declaration  of  a  voter  as  to  his 
qualification  or  disqualification  to  vote  is  always  received  in  evidence; 
he  is  regarded  as  a  i)arty  to  the  i)roceedings.  This  is  a  well-settled  and 
uniform  practi'*^  (see  27  N.  Y.  Rep.,  People  vs.  Pease ;  3  McOord's 
Rep.,  page  230,  foot-note ;  contested  election  ca«e,  Yallandigham  and 
Campbell,  Cong.  Globe,  vol.  41,  page  2317;  and  in  the  case  of  Milborne 
Port,  1  Douglas  Election  Cases,  67,  76,  129,  150,  &c.,  (see  3  McCord, 
230),  it  was  decided  that  the  admissions  of  a  voter  that  he  was  bribed 
are  always  receivable  in  evidence.  They  rest  also  on  the  broader  ground 
that  confessions  of  crime  are  receivable  against  the  party  '•  as  the  high- 
est and  most  satisfactory  proof."  (Russell  on  Crimes,  volume  2,  page 
S'2'3).  Here  the  admis.sions  are  confirmed  by  all  the  surrounding  circum- 
stances; the  sudden  conversion  on  the  eve  of  the  election,  the  new 
clothes,  money,  &c. 

William  R.  Metcalf  (page  182),  a  farmer  residing  in  Crystal  Lake 
Township,  near  Minneapolis,  testifies  that  he  wa«  paid  $15  to  work  at 
the  i»olls  in  Crystal  Lake  Township  for  the  Republican  ticket.  Corser, 
one  of  the  parties  who  hired  him  to  work  at  the  ])olls,  was  a  Repub- 
lican candidate  for  State  senator,  asked  him  to  support  Washburn  ;  he 
refused ;  subsequently  he  was  engaged  to  work  at  the  polls  for  the  Re- 
publicans. The  $15  was  paid  him  by  Charles  W.  Johnson,  secretary 
of  Washburn's  committee,  the  same  party  who  bribed  Shagren.  Flaherty, 
&c.  He  went  to  Johnson's  office  two  days  after  the  election :  he  simply 
H.  Mis.  .58 29 


450  DIGEST  OF  ELECTION  CASES. 

presented  his  name  and  Jobnson  paid  him  the  $15  without  a  word.  He- 
declines  to  say  who  he  voted  for  for  Congress;  will  not  swear  that  he 
did  not  vote  for  Washburn. 

It  will  be  remembered  that  when  Major  Hale  attempted  to  bribe  Sha- 
gren  he  told  Shagren  to  come  the  day  after  election  to  Washburu's. 
office  and  he  would  be  paid.  We  find,  from  Metcalf  s  testimony,  that 
Johnson  also  had  an  arrangement  to  pay  off  his  bribed  voters  the  day 
after  election;  and  in  this  connection  we  would  refer  to  the  testimony 
of  Ed.  A.  Stevens  (page  105),  whose  office  was  iu  the  same  building 
with  Johnson's  office,  who  swears  that  as  he  passed  Johnson's  office 
several  men  were  standing  in  front  of  it,  and  a  party  said  to  Stevens, 
"  You  ought  to  hear  Charley  Johnson  swear ;  there  is  a  big  crowd  below 
after  their  pay,  and  Charley  says  '  Major  Hale  can  pay  his  own  hounds. 
I  have  all  I  can  do  to  paj' those  I  hired  myself.'"  The  testimony  of 
Metcalf  and  Shagren  shows  what  they  were  being  paid  for. 

This  same  man  Johnson  issued,  September  19,  1878,  as  secretary  of 
the  Republican  Congressional  committee,  an  appeal  (see  page  43)  in 
the  form  of  a  circular,  to  Republicans  to  contribute  funds  to  the  suc- 
cess of  the  Republican  cause  in  the  district.     The  circular  is  in  these 
words  • 

Minneapolis,  September  li». 

Sir:  The  CongTessional  committee,  cLarged  with  laboriug  for  the  success  of  the 
Republican  cause  in  this  district,  call  with  conlidence  npon  you,  as  a  Republican,  for 
such  a  contribution  in  money  as  you  may  feel  willing  to  make,  hoping  it  will  not  be 
less  than  $ . 

The  committee  deem  it  proper  in  thus  speaking  to  Republicans  to  remind  them  of 
the  importance  of  the  impending  campaign.  That  the  United  States  Senate  is  to  be 
Democratic  after  the  4th  of  March,  1879,  is  very  nearly  certain.  In  view  of  this,  the 
election  of  a  Democratic  House  of  Representatives  would  precipitate  upon  the  coun- 
try dangerous  burdens.  Among  these  schemes  is  the  intention  to  attempt  the  revolu- 
tionary expulsion  of  the  President  from  his  office,  the  paymentof  the  rebel  claims  and 
war  debt,  the  payment  of  the  full  value  of  all  emancipated  slaves,  and  the  unlimited 
issue  of  irredeemable  paper  currency  in  place  of  the  present  redeemable  paper  money, 
■which  was  issued  by  authority  of  a  Republican  Congress,  and  by  the  same  party  has- 
been  sustained,  thereby  preserving  the  national  honor  and  credit. 

Please  remit  at  once,  &c. 

Johnson  admits  (page  42)  that  copies  of  this  circular  were  sent  out  to- 
about  fifty  persons,  and  that  money  was  received  in  reply,  but  he  re- 
'  fuses  to  state  who  it  was  sent  to,  and  he  does  not  remember  what  amount 
was  received  in  response  to  this  appeal. 

This  circular  proves  three  things  : 

1st.  That  the  Republican  committee  was  collecting  money  for  political 
purposes.  And  while  there  is  no  testimony  to  show  that  the  particular 
money  received  in  response  to  this  circular  was  used  for  corrupt  pur- 
poses, there  is  evidence  which  abundantly  establishes  the  fact  that 
money,  derived  from  some  source,  was  employed  in  buying  voters. 

2d.  That  Mr. Washburn's  committee  regarded  and  treated  Mr.  Don- 
nelly as  a  Democratic  candidate,  and  entitled  as  such  to  the  Democratic 
vote  of  the  district. 

3d.  That  they  were  willing  not  only  to  admit  Mr.  Donnelly's  democ- 
racy, but  to  charge  him  wirh  being  so  extreme  a  Democrat  that  he  would 
join  in  the  most  revolutionary  designs  of  his  party;  and  they  make  their 
appeal  to  the  lowest  passions  and  prejudices  of  human  nature,  by  charg- 
ing upon  the  Democratic  party  of  the  nation  preposterous  designs 
which  it  had  never  contemplated  or  advocated. 

Louis  Kundson,  of  Miunea polls,  testifies  (page  161,  printed  testimony) 
that  he  was  paid  $5  by  his  emijloyers,  Barnard  &  Cope,  active  Repub- 
licans, to  work  for  Washburn.    He  worked  and  voted  for  him.     His 


DONNELLY    VS.    WASHBURN.  451 

fellow-workman  Louis  Paulson  did  the  same  kind  of  work,  and  also  re- 
ceived $5  ;  he,  Paulson,  saw  it  paid. 

John  C.  Oleson  testifies  (page  92)  that  Wm.  Chase  asked  him  to  vote 
for  Washburn.  He  paid  hiui  $2  to  work  at  the  polls  for  Washburn,  and 
he  did  so  work  aud  vote.  This  Wm.  Chase  was  the  same  party  who 
induced  Shagren  to  go  to  Washburn's  office  in  search  of  "  a  job." 

Emil  Shagren  testifies  (page  16)  that  OleMahla  admitted  to  him  that 
he  got  825  to  vote  for  Washburn.  Mahla  denies  this  in  part  (page  117), 
but  admits  that  he  did  receive  $25  from  some  one  for  working  at  the 
polls.  He  declines  to  say  whether  he  peddled  tickets  with  Washburn's 
name  on  them.  He  refuses  to  say  who  paid  him  the  money.  He  pre- 
tends that  he  voted  for  Donnelly. 

Shagren  also  testifies  (page  16)  that  Sevit  Mahla  told  him  that  he  had 
been  paid  to  vote  for  W^ashburn,  but  did  not  state  the  amount.  Also 
that  Daniel  Getchell  told  him  that  he  had  received  $20  for  voting  for 
Washburn.  Getchell  denies  this  (page  86),  but  he  refuses  to  say  what 
he  did  say  to  Shagren.  He  admits  that  he  received  money  for  Ins  serv- 
ices at  the  election,  but  claims  that  it  was  not  from  Mr.  Washburn, 
and  that  he  voted  for  Donnelly.     He  refuses  to  tell  who  paid  him. 

Dominick  M.  Guertin  (page  04)  testifies  that  Karl  Fintler  told  him 
that  he  had  received  a  sack  of  Washburn  flour  for  voting  for  Washburn. 

Louis  N.  Gaynor,  of  Minneapolis  (page  206),  admits  that  he  received 
money  for  his  services  on  election  day,  but  declines  to  say  who  paid  it 
to  him ;  and  he  declines  to  answer  whether  he  voted  for  Mr.  Washburn 
or  worked  for  him ;  but  he  admits  he  peddled  tickets  with  his  name  on 
them. 

Peter  Engberg,  of  Minneapolis  (page  207),  admits  that  he  received 
money  for  election  purposes ;  that  he  voted  for  Washburn  ;  that  he 
worked  for  him,  and  that  he  was  jjaid  for  his  services  on  election  day. 

John  Smith,  of  Minneapolis  (page  131),  swears  that  Peter  Quady,  a 
saloon-keeper,  told  him  he  had  received  $35  for  voting  his  boarders  for 
Mr.  Washburn. 

Peter  Quady  (page  201)  admits  that  he  told  Smith  that  he  received 
$5  and  was  to  receive  $20  more ;  that  he  induced  Smith  to  vote  and 
gave  him  a  Washburn  ticket;  several  of  his  boarders  voted  for  Wash- 
burn ;  but  he  pretends  the  money  was  not  paid  in  the  interest  of  Wash- 
burn ;  he  voted  for  Washburn. 

Winfield  S.  Leach  (page  158)  testifies  that  Quady  offered  him  $10  if 
he  would  vote  for  Washburn.    Leach  refused  the  offer. 

Hon.  Charles  Hoag,  a  leading  Democrat  of  Hennepin  County  (see  page 
90),  was  requested  by  a  Democratic  worker  for  Washburn  to  state  what 
sum  of  money,  put  into  his  hands,  would  induce  him  to  vote  for  Wash- 
burn.    Hoag  refused  the  bribe  and  voted  for  Donnelly. 

Thomas  G.  Rees,  of  Minneapolis  (page  146),  testifies  that  Frederick 
Puhler  told  bim  that  lie  was  hired  to  canvass,  "  travel,  and  treat"  for 
Washburn,  and  was  paid  $35  per  week  and  $10  a  day  for  money  spent 
in  treating;  and  that  there  was  a  man  similarly  employed  in  each  of  the 
fifteen  precincts  of  the  city  of  Minneapolis. 

Thomas  Halloran,  hotel-keeper,  Minneapolis,  testifies  (page  119)  that 
he  is  a  Democrat ;  that  he  was  paid  $5  by  a  Dr.  Evans,  with  which 
"  to  treat  the  boys,'"  and  he  agreed  to  work  and  vote  for  a  Republican 
candidate  named  by  Dr.  Evans ;  it  was  not  Mr.  Washburn ;  and  he 
claims  that  he,  Halloran,  voted  for  Donnelly. 

The  following  is  a  summary  of  the  cases  of  bribery  or  attempted 
bribery  referred  to  in  the  foregoing  testimony: 


452  DIGEST    OF    ELECTION    CASES. 

Cases  where  the  money  was  paid  by  the  sitting  memier,  or  his  bmineas  manager  or  the  clerk 
of  his  Congressional  committee,  or  some  friend,  and  the  parties  voted  foi'  sitting  member. 

At  the  wood-camp  at  Tamarack  River,  90  wood-choppers  and  2  trappers,  total.. .     92 

AVebster  and  White,  the  contractors 2 

Bernard  Clontier 1 

Kailroad  hands  at  work  at  round-house,  Crookston,  Polk  County 35 

Railroad  hands  who  came  to  Crookston  on  hand-cars 

Railroad  hands  who  voted  at  Crookston  with  Johnson 

Railroad  hands  who  voted  at  Two  Rivers 

Balance  of  D.  M,  Robbius's  railroad  hands  who  vote  at  Tamarack  River 

J.  Y.  Brower  and  the  men  he  bribed,  to  wit,  George  Geissel,  Thomas  Kittowski, 

and  Henry  Armstrong 

Wm.  M.  Leyde 

Henry  Monroe 

Abraham  Werrick 

Oluf  Larson 

Christian  Heyer 

Toleflf  G.  Fladeland 

William  Witherall 

Sloan 

A.  M.  Schaack 

Wm.  R.  Metcalf 

Louis  Kundson 

Louis  Paulson 

John  C .  Oleson 

Ole  Mahler 

Scvit  Mahler 

Karl  Fintler 

Louis  N.  Gaynor 

Peter  Engberg 

Peter  Qnady 

Fred.  Puhler  and  the  14  canvassers  similarly  engaged  in  the  other  14  precincts  of 

Minneapolis 1.5 

Mr.  Buss,  treasurer  of  Todd  County 1 

291 

Cases  where  bribes  vere  offered  but  not  accepted,  or  where,  if  accepted,  the  party  bribed 
claims  that  he  voted  for  Donnelly. 

Emil  Shagren 1 

John  Fleckenstein 1 

Peter  Virnig 1 

Charles  Berens 1 

Milo  Porter 1 

John  Flaherty 1 

O.  B.  Wergedahl 1 

John  Guiry 1 

Julius  Bjornstad j. 1 

Daniel  Getchell 1 

Winfield  S.  Leach ^. 1 

Charles  Hoajr *. 1 

Thomas  Halloran 1 

13 

Total 304 

But  this  is  not  all.  The  testimony  reveals  the  names  of  only  six  of 
the  parties  who  were  bribed  by  J.  V.  Brower,  of  Saint  Cloud,  in  his 
canvass  of  Todd  and  Morrison  Counties,  and  to  these  six  men  he  paid 
out  only  $100,  but  he  testifies  that  he  may  have  similarly  employed  a 
hundred  parties,  and  he  does  not  know  whether  he  paid  out  $50  or  $500. 
In  the  case  of  William  M.  Leyde,  another  of  the  agents  sent  out  by 
Washburn,  we  have  the  name  of  only  one  of  the  men  he  hired  to  work 
at  the  polls,  Henry  Monroe,  while  it  is  in  evidence  that  he  canvassed 
nearly  every  town  in  the  county  and  hired  a  number  of  men  whose 


DONNELLY    VS.    WASHBURN.  453 

names  he  refused  to  disclose.  We  find  that  at  Crookstou  there  were 
173  illegal  votes,  and  the  testimony  shows  that  dS  of  these  were  rail- 
road hands  who  were  all  paid  for  their  votes.  The  probability  is  very 
great  that  the  larger  part  of  the  other  105  votes  were  cast  by  railroad 
hands  similarly  paid  for  their  votes. 

In  Minneapolis  tbe  whole  atmosphere  was  clouded  with  bribery.  The 
evidence  shows  that  large  sums  of  money,  many  thousands  of  dollars, 
had  been  spent  for  corrupt  purposes.  A  startling  revolution  in  the  po- 
litical feelings  of  the  voters  was  accomplished  on  the  eve  of  the  election, 
and  all  the  testimony  indicates  that  this  was  brought  about  by  bribery 
and  intimidation.  There  was  no  attempt  on  the  part  of  the  sitting 
member  to  account  for  this  extraordinary  revolution,  or  to  answer  the 
testimony  showing  bribery. 

It  must  not  be  forgotten  that  bribery  is  a  secret  crime ;  both  the  parties 
to  it  are  equally  interested  in  keeping  it  secret ;  and  when  detected  both 
are  ready  to  give  ingenious  explanations  of  it.  If  they  have  acknowl- 
e<lged  to  third  parties  the  receipt  of  the  bribe,  they  are  ready  to  declare, 
when  called  to  the  witness-stand,  that  they  were  in  favor  of  the  bribe- 
giver before  the  money  was  offered  ;  or  that  they  voted  for  his  opponent ; 
or  that  the  money  was  paid  by  some  one  else,  some  nameless  party,  for 
some  other  purpose. 

Under  these  circumstances  when  it  is  shown  that  in  an  election  over 
300  cases  of  bribery  and  attempted  bribery  are  proven,  the  presumption 
is  not  violent  that  for  every  case  that  was,  by  accident  or  the  indiscre- 
tion of  tlie  parties,  brought  to  the  light  there  were  others  that  were 
never  revealed. 

The  records  of  the  contested-election  cases  of  Congress  will  be  searched 
in  vain  for  a  parallel  to  this  case.  It  showfe  that  the  people  of  this  Con- 
gressional district  were  debauched  to  the  last  degree ;  the  witnesses  in 
many  cases  defend  the  practice  of  buying  up  voters  to  forego  their 
principles ;  the  parties  who  received  the  bribes  in  many  instances 
boasted  to  their  neighbors  of  the  money  they  had  received,  and  seemed 
to  be  proud  of  the  h«gh  price  for  which  they  had  sold  themselves ;  and 
the  sitting  member  did  not  think  it  at  all  necessary  to  call  witnesses  to 
deny  or  explain  away  this  overwhelming  mass  of  corruption.  Nothing 
could  testify  more  strongly  to  the  degeneracy  of  the  age  and  the  depths 
to  which  popular  sutfrage  has  fallen  than  the  revelations  made  in  this 
extraordinary  case. 

It  is  a  clearly  established  principle  of  law,  both  in  England  and  the 
United  States,  that  bribery  committed  by  the  sitting  member,  or  "  by 
any  agent  of  the  sitting  member,  with  or  without  the  knowledge  or  di- 
rection of  his  principal,  renders  the  election  void."  (See  Felton  r*. 
Easthorpe,  Kogers's  Law  and  Practice  of  Elections,  221.) 

In  EngltiiKl  l)ril»ery  is  au  offense  of  so  heiuons  a  character,  and  so  utterly  subverhive 
of  the  freeilom  of  elections,  that,  -when  proved  to  have  been  committed,  though  in  one 
instance  only,  and  though  .a  majority  of  nnbribed  voters  remain,  the  election  will  be 
absolutely  void.  (Cnshiug's  Par.  L-4w,  p.  70,  sec.  189;  St.  Ire*:,  Douglass,  11,  ■.it'9; 
Covnttry,  Peck>vel],  1,  IC  ;  Maine  on  Elections,  345.) 

Freedom  of  election  is  violated  by  external  violence,  by  which  the  electors  are  con- 
strained, or  hkf  bribery  by  which  their  will  is  corrupted  ;  and,  in  all  cases,  where  the 
electors  are  prevented  in  either  of  these  ways  from  the  free  exercise  of  their  rights, 
thctUrtion  will  be  roid  irithoat  reference  to  the  number  of  rotes  affeited  th*reby.  (Cushiiig'a 
Par.  Law,  p.  ♦">::<,  s«>c.  I'-l.) 

The  same  doctrine  was  affirmed  by  the  House  of  Representatives  ia 
the  recent  case  of  Piatt  cs.  (xoode,  .second  Congressional  district,  Vir- 
ginia.    (See  Contested  Elections,  1871-'70,  jiage  «;.'>0).   , 

The  rei>ort,  a^lopted  by  the  House,  declares : 


454  DIGEST  OF  ELECTION  CASES. 

The  bribed  votes  should  iiot  be  counted.  The  record  furnishes  no  method  for  their 
elimination.  Their  acceptance  can  only  be  avoided  by  applying  the  rale  of  law,  so' 
well  known  and  of  such  general  adoption  that  it  need  scarcely  be  repeated  here,  that 
when  illegal  and  fraudulent  votes  have  been  proven,  and  the  i)oll  cannot  be  purged 
with  reasonable  certainty,  the  whole  vote  must  be  rejected. 

But  yonr  committee  do  not  think  it  necessary  to  rest  the  decision  of 
this  case  upon  this  principle  of  law^ although  they  believe  that  the  evi- 
dence shows  conclusively  not  only  that  bribery  was  committed  in  a 
multitude  of  instances,  but  that  a  great  number  of  these  cases  were 
traced  home  to  the  sitting  member.  They  are  of  the  opinion  that  the 
evidence  shows  that  the  contestant  had  a  majority  of  the  legal  votes 
cast  and  returned. 

INTIMIDATION. 

It  appears  that  many  of  the  voters  who  cast  their  votes  in  favor  of 
the  sitting  member  were  intimidated  and  coerced  into  doing  so.  The 
testimony  of  Albert  Church,  (pages  224,  227)  shows  that  the  railroad 
hands  who  voted  for  Washburn,  at  Crookston,  told  him  that  they  were 
compelled  "  to  vote  the  way  their  boss,  the  railroad  company,  told  them 
to ;  *  *  *  they  had  to  vote  the  ticket  of  their  own  boss."  They 
were  led  up  in  a  body  to  the  polls  (page  226)  by  their  foreman,  Jacobus, 
and  he  gave  them  the  tickets  they  were  to  vote.  Many  of  tliese  men 
were  Democrats  (page  224),  and  would  probably  have  voted  the  Demo- 
cratic ticket  if  they  had  been  free  from  the  coercion  of  the  railroad  com- 
pany. 

In  Minneapolis  this  system  of  coercion  and  intimidation  was  carried 
out  systematically.  The  testimony  shows  tliat  the  emi>loyers  of  labor 
in  that  city  united  to  raise  money  to  buy  Aotes  for  Washburn  (page 
23) ;  a  circular  was  issued  by  the  chairman  of  the  K-epublican  county 
committee,  urging  business  men  to  lay  aside  their  business  and  devote 
one  day  at  the  polls  (page  10(3) ;  large  numbers  of  employers  of  labor, 
including  many  who  usually  took  no  i)art  in  such  work,  were  at  the 
polls  working  for  Washburn  (page  106) ;  the  workmen  were  sent  for  and 
brought  to  the  polls  by  their  employers  and  ballots  were  there  placed 
in  their  hands,  folded,  and  voted  by  the  employees  without  being  opened 
(page  108),  the  employer  or  his  foreman  following  them  to  the  polls  to 
see  that  they  deposited  them  (page  97) ;  many  of  the  employes  declared 
that  they  believed  they  would  lose  their  means  of  subsistence  if  they  did 
not  vote  for  Washburn  (page  110) ;  the  employes  of  the  North  Star 
Woolen  Mill  were  brought  to  the  polls  in  squads  by  the  son  of  the  pro- 
prietor, Philip  Gibson  ;  when  a  friend  of  contestant  tried  to  give  these 
men  ballots,  Gibson  jumped  between  them  and  tried  to  force  the  can- 
vasser away,  declaring  that  he  had  brought  the  men  there  himself,  and 
that  most  of  the  workmen  voted  as  their  employers  wanted  them  to 
(page  96).  The  foreman  of  this  mill  told  one  of  the  workmen  (page  97) 
that  an  emi)loye  of  the  mill  had,  at  a  previous  election,  voted  iu  opposi- 
tion to  his  wishes,  and  that  he  would  take  the  same  man  to  the  polls 
the  next  day,  to  wit,  to  the  Congressional  election  in  question,  and  if 
he  did  not  vote  as  he  wanted  him  to  he  would  discharge  him.  When 
witnesses  were  called  by  contestant  from  among  theemployes  of  this  mill 
to  testify  in  this  case,  the  said  foreman  followed  them  to  the  notary's 
office  and  remained  there  while  they  were  testifying  (page  98). 

The  workmen  in  the  Minneapolis  Harvester  Works  who  were  known  to  be  Washburn 
men  were  carried  to  the  polls  and  returned;  while  those  who  could  not  be  induced 
to  vottj  for  Washburn  were  not  allowed  to  go,  unless  by  losing  their  day's  work,  and 
probably  their  situations.    (Page  98.) 

In  one  case  a  witness,  a  workman  in  a  furniture  shop,  swears  that  he 
was  suspended  from  work  the  day  after  election  because  had  he  voted  for 


DONNELLY    VS.    WASHBURN.  455 

Donnelly,  and  because  it  was  reported  to  his  employer  that  he  had  ex- 
pressed the  belief  that  if  Donnelly  was  elected  the  workmen  would  get 
better  wages ;  ten  days  after  election  he  was  finally  discharged.  (See 
pages  101-2).    It  appears — 

The  vote  of  tht-  city  was  very  liglit.  '^  "  *  A  large  number  of  workmen  <iid  uot 
vote  at  all.  Tlioy  were  afraid  of  losing  their  jobs  if  they  voted  for  Donnelly,  and. 
they  would  not  vote  for  Washburn.     (Page  113. ) 

In  seven  precincts  of  Minneapolis  the  judges  of  election  placed  a  num- 
ber on  the  back  of  each  ballot  to  correspond  with  the  number  of  the 
voter  on  the  poll -list.  Let  us  consider  the  purpose  of  this  numbering  of 
the  ballots. 

At  the  session  of  the  legislature  of  Minnesota  in  January  and  Febru- 
ary, 1878^  a  si)ecial  law  had  been  enacted,  providing  that  in  cities  con- 
taining more  than  12,000  inhabitants  the  ballots  should  be  numbered. 
This  law  applied,  and  was  intended  to  apply,  only  to  the  cities  of  Saint 
Paul  and  Minneapolis,  where  the  workingmen  were  ver^' numerous,  and 
where  alone  the  required  population  existed.  It  was  felt  by  many  that 
this  i)rovision  of  law  was  oppressive  and  unconstitutional,  and  at  the 
spring  election  in  Saint  Paul,  held  immediately  after  the  law  was  passed, 
a  party  offered  to  vote  without  having  his  ballot  numbered;  he  was  re- 
fused, and  he  brought  an  action  at  once  in  the  district  court  of  Ramsey 
■County,  in  .which  Saint  Paul  is  situated,  to  test  the  validity  of  the  a<jt. 
The  court  decided  (see  Brisbin  vs.  Cleary  et  al.,  printeid  testimony,  page 
74)  that  the  act  was  unconstitutional,  inasmuch  as  the  constitution  of 
Minnesota,  section  G,  article  YII,  provides  that  "  all  elections  shall  be 
by  ballot " ;  that  the  ballot  implies  secrecy,  and  that  this  law  requires 
every  man  "to  vote,  in  eftect,  a  ticket  with  his  name  indorsed  on  it"; 
and  in  case  of  a  contest  the  ballots  are  to  be  made  public.  "This  law," 
says  the  court,  "furnishes  the  means  of  ascertaining  exactly  how  ev^ery 
elector  voted  :  that  is  its  acl^nowJedged  purpose.''^ 

This  decision  of  the  district  court  of  Ramsey  County  was  the  unani- 
nio  IS  decision  of  a  full  bench  of  three  judges;  it  was  appealed  to  the 
•supreme  court,  and  was  atfirmed  by  the  supreme  court  subsequently  to 
the  election.  (See  Northwestern  Reporter,  vol.  1,  page  75,  foot  page 
825,  Brisbin  vs.  Cleary  et  al.,  being  an  appeal  from  the  district  court  of 
Ramsey  County,  in  the  same  case  referred  to  above.)  The  supreme 
■court  sustain  the  decision  of  the  district  court  of  Ramsey  County,  and 
•say : 

The  statutory  provision  with  regard  to  the  numbering  of  tickets,  above  quoted 
■clearly  interferes  with  and  violates  the  voter's  constitutional  privilege  of  secrecy.  It 
is  therefore  an  unconstitutional  provision.  The  voter  cannot  be  required  to  submit 
to  its  application  the  ticket  ottered  by  him.  •  *  •  The  defendant's  demurrer  was 
properly  overruled,  and  the  order  overruling  the  same  is  accordingly  affirmed. 

This  decision  was  made  subsequently  to  the  election  in  controversy, 
but  is  it  not  retroactive  in  its  effect  upon  this  case  ? 

It  declares  that  the  word  "ballot"  means  secrecy  and  absence  of  every 
•external  mark  whereby  the  elector  who  has  cast  the  same  can  be  iden- 
tified. A  ticket  identified  by  placing  the  voter's  name,  or  a  number  in- 
-dicative  of  his  name  upon  it,  is  not  a  "ballot"  in  the  sense  of  the  con- 
stitution; and  has,  therefore,  no  right  to  be  placed  in  the  ballot-hox. 
When  the  court  decided  that  such  identified  tickets  were  not  "  ballots" 
it  certainly  follows  that  they  are  uot  entitled  to  be  counted  as  "ballots." 

Briefly  stated,  the  argument  may  be  thus  summed  up: 

1.  Members  of  Congress  can  onlv  be  elected  in  the  State  of  Minnesota 
hy  "  ballots." 

2.  A  numbered  ticket  is  not  a  "  ballot." 

.  3.  Such  numbered  tickets,  therefore,  cannot  be  counted. 


456  DIGEST    OF    ELECTION    CASES. 

They  are  simply  attempts  to  vote,  but  are  by  election  officers  deprived 
of  that  constitutional  element  of  secrecy  which  is  necessary  to  enal^le 
them  to  be  counted  as  "  ballots." 

But  it  is  not  necessary  to  rest  the  decision  of  this  case  alone  upon 
this  ground.  The  conclusion  we  have  reached  is  based  on  broader  founda- 
tions, which  reach  the  bona  fides  of  the  election  in  the  precincts  wiiere 
those  ballots  were  numbered.  Not  only  were  the  numbered  votes  cast 
in  those  precincts  unconstitutional  and  void,  but  they  were  so  numbered 
for  a  corrupt  and  dishonest  purpose,  and  were  incompatible  with  an 
honest,  fair,  and  free  election. 

All  lawyers  will  concur  that  the  decision  of  the  district  court  was. 
highly  persuasive  of,  if  not  sufficient  to  control,  the  judgment  of  election 
officers  in  their  action  touching  the  validity  of  the  statute  in  question. 
And  we  accordingly  tind  (see  Daily  Globe,  November  5, 1878,  report  of 
proceedings,  offered  in  evidence)  that  in  the  city  of  Saint  Paul  the 
judges  of  election  met  the  day  before  election,  took  counsel  with  the  law 
officer  of  the  city,  and  decided  not  to  number  the  ballots.  They  took 
this  course  under  the  advice  of  the  attorney-general  of  the  State  (as  ap- 
pears by  said  paper),  of  the  county  attorney  of  Ramsey  County,  of  the 
city  attorney  of  Saint  Paul,  and  even  of  the  counsel  who  had  defended 
the  law  before  the  district  court.  These  parties,  the  attorneys  for  the 
city  and  county,  and  the  attorney  defending  the  act,  united  in  a  card  ta 
the  public  advising  election  officers  not  to  number  the  ballots.  (See 
Saint  Paul  Pioneer  Press,  October  27,  1879.) 

A  similar  meeting  of  the  judges  of  election  was  held  the  day  before 
the  election  in  the  city  of  Minneapolis  (see  page  134).  They  called  upon 
the  city  attorney  for  his  opinion  on  the  question  of  numbering  the  bal- 
lots. He  told  them  that  the  district  court  of  Ramsey  County  had  de- 
cided that  the  law  was  unconstitutional,  and  that  it  was  his  opinion, 
also,  that  such  numbering  dcsiroyed  the  secrecy  of  the  ballot  and  waa 
unconstitutional.  "  Thej"^  tiually  took  a  vote  as  to  how  they  would  con- 
duct the  election  in  that  particular,"  and  ''  decided  in  favor  of  disre- 
garding the  law,"  and  that  they  would  not  number  the  ballots.  The 
vote  stood  thirteen  or  fifteen  against  eight  or  ten  (page  143). 

It  was  thus  resolved  in  both  the  cities  to  which  alone  the  law  applied 
that  the  ballots  should  not  be  numbered.  This  was  considered  a  tri- 
umph for  the  supporters  of  Mr.  Donnelly,  and  accordingly,  the  Saint  Paul 
Daily  Globe,  the  Democratic  paper  of  that  city,  which  was  supporting 
Mr.  Donnelly,  announced  this  action  in  its  issue  of  the  next  morning, 
which  was  the  morning  of  election,  in  these  words: 

[From  the  Saint  Paul  Daily  Globe,  November  5,  1878,  Exhibit  B,  E.  A.  H.,  on  lile  in  office  of  clerk  of 

Committee  on  Elections.j 

MINNEAPOLIS  NEWS. 

NO  NUMBERING. 

DEMOCRAT?,  WORKINGMEN,  AND  NATIONALS. 

THBBE  18  NO  KEAR  OF   LOSING  YOUR    SITUATIONS.      GIVE  WASHBURN  A  BLACK    EYK.. 
YOVR   EMPLOYERS   CANNOT  FIND   Ol  T   JIOW   YOU   VOTE. 

The  judgfiH  of  election  met  at  the  council  clianiber  at  3  o'clock  yesterday  afternoon 
to  consult  as  to  whether  it  would  be  legal,  after  the  recent  decision  of  the  Ramsey 
County  Court,  to  number  the  ballots.  After  consulting  the  best  legal  talent  of  the 
city,  it  was  determined  to  receive  the  votes  as  of  old,  and  deposit  without  placing  the 
numbers  opposite  the  different  names. 

This  makes  the  thing  all  secnre  !     Now,  boys,  go  to  the  i>olls  and  vote  as  you  please  f 

The  bulldozers  can't  rob  you  of  your  places. 

Vote  for  Donnelly,  and  down  with  all  rings. 


DONNELLY    VS.    WASHBURN.  457 

In  Saint  Paul  the  same  paper  announces  the  resolution  of  the  judges 
not  to  number  the  baHots  under  a  head-lino,  "  No  Numbers — A  Free, 
Untrammeled  Ballot  ! " 

This,  it  will  be  remembered,  was  contemiwraneous  history  ;  it  shows 
that  it  was  understood  at  that  time,  before  any  contest  could  have  been 
contemph^t«'d  by  contestant,  that  the  numbering  of  the  ballots  would 
result  in  the  intimidation  of  the  workingmen  who  were  in  favor  of  Don-^ 
nelly  ;  and  that  if  the  ballots  were  not  numbered  Donnelly  would  secure 
a  larger  vote  among  the  workingmen. 

This  newspaper,  it  is  shown,  reached  Minneapolis  before  7  o'clock 
on  the  morning  of  the  election,  and  it  had  a  large  circulation  in  that 
city  (see  page  40,  questions  0,  10,  11,  12).  It,  doubtless,  aroused  the 
friendsof  the  sitting  member  to  action;  for  we  find  that  by  9  o'clock, 
the  hour  at  which  the  polls  opened,  a  decision  had  been  reached  to  num- 
ber the  ballots  in  seven  out  of  fifteen  election  precincts  of  Minneapolis. 
It  is  charged  by  contestant  in  his  brief  that  these  precincts  were  largely 
inhabited  by  workingmen  ;  and  this  statement  was  not  denied  by  the 
counsel  for  the  contestee  in  his  brief.  It  appears  (page  181)  that  in  one 
precinct  (second,  of  the  fourth  ward),  all  the  voters  were  workingmen ; 
and  the  returns  of  the  votes  of  previous  elections  show  that  a  large 
Democratic  vote  was  cast  in  these  precincts. 

If  the  numbering  of  the  ballots  had  been  the  result  of  an  innocent 
mistake  on  the  part  of  the  judges  of  these  seven  precincts ;  if  they  had 
been  ignorant  of  the  decision  of  the  district  court  of  Eamsey  County 
declaring  such  numbering  unconstitutional ;  if  there  was  no  evidence  to 
show  fraud  or  intimidation,  we  should  not  be  in  favor  of  casting  out  the 
votes  of  these  precincts  simply  for  the  reason  that  the  ballots  had  been 
numbered.  This  was  the  view  taken  by  the  election  committee  in  the 
case  of  McKenzie  r#.  Braxton,  seventh  district  Virginia  (Contested 
Elections,  1871-'76,  page  20).  The  committee  (McCrary,  chairman), 
says : 

Although  it  would  be  possible,  from  the  numbering  of  the  ballots,  to  ascertain  how- 
each  person  voted,  it  is  not  claimed  in  this  case  that  this  was  done,  or  that  the  ticket* 
were  voted  for  any  such  purpose,  or  for  any  improper  or  nnlawftil  purpose  whatever. 

The  question  of  intent,  therefore,  is  the  true  question  at  issue,  and  all 
the  circumstances  in  the  case  under  consideration  point  to  a  corrupt 
intent  : 

1.  A  cloud  of  bribery  surrounds  the  vote  of  the  whole  city,  which  th&- 
contestee  has  made  no  effort  to  dissipate. 

2.  There  is  evidence  showing  a  widespread  conspiracy  among  the  em- 
ployers of  labor  to  corrupt  and,  where  they  could  not  corrupt,  to  intimi- 
date their  workmen. 

3.  The  testimony  shows  that  the  workmen  were  intimidated,  and  that 
they  believed  that  they  would  lose  their  means  of  subsistence  if  they 
voted  against  Washburn. 

4.  The  judges  of  election  knew  that  the  numbering  of  the  ballots  had 
been  declared  unconstitutional  by  a  court  of  record  second  only  to  the 
supreme  court  in  dignity;  by  the  attorney-general  of  the  State;  by  the 
city  attorney  of  Saint  Paul;  and  by  the  county  attorney  of  Ramsey 
County;  and  that  even  the  attorney  who  had  defended  the  constitu- 
tionality of  the  law  in  the  district  couit  had  advised  judges  of  election 
not  to  number  the  ballots. 

5.  They  had  been  told  by  their  own  law  oflScer,  whose  opinion  they 
had  requested,  that  it  would  be  unconstitutional  to  number  the  ballots, 
inasmurh  as  it  violated  the  secrecy  of  the  ballot. 

6.  They  knew  that  the  supporters  of  Mr.  Donnelly  believed  that  the 


458  DIGEST    OF    ELECTION    CASES. 

numbering  of  the  ballots  would  prevent  a  free  and  fair  election,  and 
would  result  in  the  intimidation  of  the  workmen. 

7.  They  had  deliberately  voted  by  a  large  majority  not  to  number  the 
ballots. 

There  can  be  but  one  explanation  of  the  intent  with  which  they  re- 
versed this  deliberate  action.  It  was  done  to  prevent  a  fair  election, 
and  to  give  the  employers  of  workingmen  an  opportunity  to  still  furtbiBr 
intimidate  them  by  preserving  a  record  of  how  the  men  voted  whose 
means  of  life  depended  upon  the  good-will  of  those  whoemployed  them; 
the  workingmen  well  knew  that  the  ballot-boxes  could  be  opened  at 
any  time  in  any  real  or  pretended  contest  and  the  character  of  their 
votes  revealed. 

Only  bold  and  reckless  men  would  have  dared  to  set  their  private 
judgment,  as  laymen,  against  the  judgment  of  the  district  court  of  liam- 
sey  County,  against  the  judgment  of  the  attorney-general  and  of  the 
law  offices  of  their  own  city,  upon  a  question  of  law,  and  against  the 
opinions  of  two-thirds  of  the  judges  of  election  as  expressed  at  the  meet- 
ing of  judges  the  day  before.  In  doing  so  they  ran  counter  to  and  de- 
fied the  settled  opinion  upon  the  question.  These  seven  precincts  were 
the  only  precincts  in  the  two  cities  Saint  Paul  and  Minneapolis — where 
there  were  over  thirty  precincts — in  which  the  ballots  were  numbered 
in  the  year  1878. 

It  must  be  remembered  that  the  testimony  shows  that  among  the 
twenty -one  judges  of  election  of  these  seven  precincts,  who  thus  re- 
Tersed  tqe  action  of  all  the  judges  of  the  city  of  the  day  before,  there 
wavS  but  one  judge  who  was  a  friend  of  Mr.  Donnelly  (see  pages  195- 
197) ;  and  even  he  did  not  swear  that  he  was  a  supporter  of  Mr.  Donnelly, 
but  onl3'  that  he  was  "understood"  to  be  such  (see  page  136).  By  law 
Mr.  Donnelly,  as  the  candidate  of  two  political  parties,  should  have  had 
fourteen  supporters  among  these  twenty-one  judges;  in  effect,  he  had 
not  one.  (See  section  1  act  of  March  12,  1878.)  This  extraordinary 
action  was  therefore  taken  by  twenty-one  judges  who  were  the  political 
partisans  of  Mr.  Washburn ;  and  no  explanation  is  offered  by  Mr.  Wash- 
burn or  themselves  for  their  course. 

The  very  fact  that  in  these  seven  precincts  Mr.  Donnelly  had  been 
deprived  by  the  city  council  of  Minneapolis  of  all  represeutation  among 
the  officers  conducting  the  election  is,  in  itself,  a  very  strong  proof  of 
conspiracy  and  fraud. 

It  appears  by  the  testimony  of  one  witness,  a  Democrat  (page  137),  that 
he  offered  his  ballot  at  one  of  these  precincts  and  requested  that  it  be 
placed  in  the  ballot  box  without  being  numbered:  this  was  refused;  the 
judges  refused  to  permit  him  to  vot«  unless  he  voted  a  numbered  ballot; 
this  he  declined  to  do,  and  he  did  not  vote.  It  appears  that  large  numbers 
of  workmen  did  not  vote  for  fear  of  losing  their  places  (p.  113).  It  is  an 
established  principle  of  law  that  where  voters  are  kept  from  voting  by  an 
illegal  requirement  of  the  election  officers,  it  voids  the  election  at  such 
polls.  (See  McCrary's  Amer.  Law  Elections,  section  89;  Scrantou 
Bordtigh  Election,  Brightly's  Election  Cases,  page  455.)  It  is  evident 
that  large  numbers  of  Democrats,  from  some  cause,  did  not  vot«  at  all 
at  said  election  in  that  city. 

Two  years  previously,  at  the  Presidential  election  of  1876,  the  vote  of 
Minneapolis  stood  as  follows  (see  Saint  Paul  Pioneer-Press,  November 
9,  1876,  in  Congressional  Library) : 

Hayes 4,09H 

Tilden 3,743 

Total 7,841 


DONNELLY    VS     WASHBURN. 


459 


It  is  a  matt-er  of  liistorv  tbat  Minneapolis  increased  diirins:  the  two 
vears  between  November,  1.S70,  and  November,  1878,  at  the  rate  of  11 
per  cent.  i)er  annum  (see  Minnesota  State  Register.  1870,  Conj;fressional 
Library,  ]rAg(i  316).  If  we  apply  this  i>ercentage  of  growth  to  the  vote 
of  1870,  and  suppose  that  the  two  political  parties  increased  pro  rata, 
then  the  vote  should  have  stood  in  1878  as  follows :  ' 

Total  Democratic  vote 4,  568 

Total  Republican  vote 4, 999 

But  instead  of  Mr.  Donnelly  receiving,  in  1878,  4,5fiS  votes  in  Minne- 
apolis, he  received  but  1,500  votes :  a  fallinor  otif  of  3,002  votes.  And  it 
appears  that  but  a  small  part  of  this  Democratic  vote  went  to  Mr.  Wash- 
burn ;  for,  if  he  received  the  full  vote  of  his  party,  he  shouhl  have  had 
4,999  votes,  while  he  claims  to  have  received  5,026  votes  ;  a  gain  of  only 
27  votes. 

It  thus  appears  that  there  were  nearly  3,000  Democratic  voters  who 
<lid  not  vote  at  all  at  the  election  of  Noveaiber  5,  1878. 

The  result  was  that,  insteail  of  the  Republican  majority  given  to 
President  Hayes  in  Minneapolis  of  355  votes,  Washburn  claims  to  have 
carried  the  city  by  3,680  votes. 

The  evidence  shows  that  Mr.  Donnelly  was  the  Democratic  candidate 
for  Congress,  and  that  he  received  the  support  but  not  the  votes  of  very 
nearly  all  the  Democrats,  even  in  Minneapolis  (see  pages  109, 110);  the 
imniense  falling  off  of  two-thirds  of  the  Democratic  vote  in  Minneapolis 
can,  therefore,  only  be  accountesd  for  by  the  intimidation  of  the  workmen, 
and  the  numbering  of  the  ballots  in  nearly  half  the  precincts  of  the  city 
was  ])art  of  this  system  of  intimidation. 

The  evidence  shows  that  the  workingmeu  of  the  city  regarded  Mr. 
Donnelly  as  their  friend  and  champion  (page  112).  They  had  a  Labor 
Union,  a  political  society,  numbering  about  2,200  members  (page  111), 
and  wliieh  represented  the  sentiments  and  feelings  of  the  working  popu- 
lation of  the  city,  numbering  between  4,000  and  5,000  (page  112);  Mr. 
Washburn  "had  no  friends  in  the  Labor  Union''  (page  HI);  and  the 
Union  nominated  Mr.  Donnelly  for  Congress,  at  a  large  meeting,  by  a 
unanimous  vote.  The  workingmeu  continued  to  support  Mr.  Donnelly 
until  the  day  before  the  election  (pages  141, 142).  The  evidence  shows 
that  a  great  revolution  was  wrought  in  the  action  of  the  Democrats  on 
the  eve  of  the  election  :  a  revolution  which  several  witnesses  state 
<?ould  onlv  be  explained  bv  the  use  of  money  and  intimidation  (pages 
08,  106,  141,  142,  277,  &c.).  Instead  of  receiving  the  4,000  or  5,000 
votes  of  the  workingmeu.  or  the  4,568  votes  of  the  Democrats,  to  say 
nothing  of  the  Greenback  vote,  Mr.  Donnelly  received  but  1,566  votes 
in  the  entire  city. 

In  the  seven  precincts  where  the  ballots  were  numbered  the  vote  stood 
as  follows : 


Wanl 


Second 

Fonr;h..... 


Sixth 


First 

Second 

FiiB' 

Second 

Third 

First.. 

Third. 


Total  ni;yorit.y  for  Washburn  in  these  precincts 


187 

42  ) 

263 

42 

334 

127 

347 

57 

566 

83 

364 

95 

1    219 

76 

1    •■*• 
.... 

1 

^•^•3 


143 
228 
207 
290 
483 
269 
143 

1,7«0 


460  DIGEST  OF  ELECTION  CASES. 

If  we  compare  tbis  vote  with  the  vote  cast  in  these  same  precincts 
seven  months  previously,  to  wit,  at  the  municipal  election  of  April  2, 
1878,  we  find  that  the  Keptiblitans  carried  these  seven  precincts  at  that 
spring  election  by  a  total  majority  of  171,  or  1,689  votes  less  than  the 
majority  claimed  for  Washburn. 

At  the  same  election,  in  the  spring  of  1878,  the  Kepublicans  had  but 
164  majority  in  the  city  of  ^Minneapolis ;  and  yet  they  claim  to  liave 
carried  the  city,  seven  months  thereafter,  by  3,680  votes. 

In  these  seven  precincts  the  vote  at  the  spring  electiou-of  1878  was 
as  follows : 

Republican 1,215 

Democratic 1 ,  044 

Total 2,259 

At  the  Congressional  election,  November  5,  1878,  the  vote  in  these 
seven  precincts  was  as  follows : 

Washburn 2,282 

Donnelly 522 

2,  804 

Thus  while  the  vote  in  the  fall  was  but  545  more  than  it  was  in  the 
spring,  the  Republican  majority  was  ten  times  as  ^reat : 

Republican  majority  spring  of  1878 171 

Republican  majority  fall  of  1878 1,  760 

The  total  vote  of  the  city  in  1876  at  the  Presidental  election  was 
7,841.  If  now  we  add  22  per  cent,  for  the  increase  of  population,  the 
total  vote  in  1878  should  have  been  9,566 ;  instead  of  that  it  was  6,592, 
a  falling  oft"  of  2,964. 

In  round  numbers  the  vote  cast  in  1878  was  52  per  cent. less  than  the 
actual  vote  of  the  city.  It  is  conceded  that  the  canvass  of  1878  was 
one  of  the  most  vigorous  ever  made  in  the  city  (page  106-7) ;  but  while  it 
brought  out  the  full  Republican  vote,  nearly  3,000  Democrats  failed  to 
vote ;  or  if  any  considerable  part  of  them  voted  for  Washburn,  then  au 
equal  number  of  Republicans  must  have  refused  to  vote  for  him.  There 
can 'be  no  question  that  a  large  part  of  these  men  were  the  employes, 
who  feared  to  vote  for  Donnelly  lest  they  should  lose  their  places. 

It  cannot  be  claimed  that  Mr.  Washburn  increased  the  Republican 
vote  of  the  city  from  355  to  3,680,  and  the  Republican  vote  ol"  the  seven 
precincts  from  171  to  1,760  because  of  his  personal  popularity ;  because 
it  is  in  evidence  that  he  was  not  popular  (see  pages  HI,  277).  A  com- 
parison of  his  vote  in  the  district  outside  of  Minneapolis,  with  the  vote 
cast  for  IJayes  in  1876,  proves  that  he  was  very  unpopular.  The  vote 
stands  as  follows : 

Hayes,  1876 19, 573 

Washburn.  1878 14,(i58 

Washbam  ran  behind  Hayes 4, 915 

But,  if  from  Washburn's  vote  there  be  deducted  the  railroad,  bribed,, 
and  illegal  vote  of ''  Polk  and  Kittson  Couuty ,"  355  in  all,  he  will  be  found 
to  have  run  behind  Hayes  in  the  district,  outside  of  Minneapolis,  5,270 
votes,  in  a  total  vote  of  19,573. 

On  the  contrary,  Mr.  Donnelly's  vote  compares  favorably  with  the 
total  vote  for  Tilden  and  (.'ooper,  in  the  district  exclusive  of  Minne- 
apolis, thus : 


DONNELLY    VS.    WASHBURN.  461 

Tilden  and  Cooper 16, 1'26 

D<»ii  nelly's  vote !">,  926 

Add  for  votes  of  "  Polk  and  Kittson  County  " 3ix> 

16,281 

Donnelly  runs  ahead  of  Tilden  and  Cooper 155 

Xow  we  are  asked  to  believe  that  while  Mr.  Washburu  fell  behind 
Hayes's  vote  outside  of  Minneapolis  5,270  votes,  that  he  ran  ahead  of 
Hayes  in  Minneapolis  3,105  votes!  And'this,  notwithstanding  the  fact 
that  the  poi)nlation  of  ^finneapolis  consists  largely  of  workiugmen,  who 
had  placed  Mr.  Donnelly  in  nomination  as  their  candidate  for  Congress, 
and  among  whom,  it  appears,  Mr.  Washburn  "had  no  friends."  And, 
notwithstanding  the  further  fact,  that  Minneapolis  may  be  regarded  as 
debatable  ground,  politically.  In  1876  the  Democratic  candidate  for 
Congress,  McNair,  carried  the  city  by  about  500  majority,  and  the  county 
by  over  1,000  majority.  In  April,  1876,  the  Democrats  and  working- 
men  elected  a  Democratic  mayor  in  Minneapolis  by  356  majority,  and 
carried  the  wards  embraeing  the  territory  now  embraced  in  the  seven 
wards  where  the  ballots  were  numbered  by  525  majority.  The  vote 
stood  therein : 

Democrats 1,  372 

RepuMicans 847 

Democratic  majority 525 

The  testimony  produces  the  conviction  that  Mr.  Donnelly  was  sweep- 
ing the  district  outside  of  Minneapolis  and  carrying  all  before  him;  that 
he  was  popular  in  Minneapolis,  especially  among  the  workiugmen,  and 
that  the  workingmen  constituted  a  majority  of  the  total  population. 
That  in  this  emergency  the  sitting  member  and  his  friends  formed  a 
conspiracy  to  arrest  the  tide  of  defeat  by  bribery  and  intimidation  ;  and 
that  their  last  intrenchment  was  the  seven  precincts  where,  in  effect, 
they  made  the  workingmen  vote  viva  voce  for  Washburu  or  take  the 
chances  of  starvation.  And  it  is  a  singular  and  suspicious  circumstance 
that  the  vote  of  two  of  these  seven  precincts,  two  precincts  where  Wash- 
burn claims  706  majority,  were  not  returned  until  eight  days  after  the 
election,  although  rhey  should  have  been  returned  on  the  morning  after 
the  election ;  and  then  when  they  were  returned  one  of  the  two  pre- 
cincts is  claimed  for  Washburn  by  483  majority,  while  one  of  the  clerks 
of  the  election  therein,  produced  the  original  tally-sheet  of  the  elec- 
tion, showing  but  26  majority  for  Washburn  in  that  precinct  instead  of 
483.  (See  page  275.)  And  when  the  counsel  for  Washburn,  in  the  per- 
formance of  his  professional  duty,  subpcenaed  the  officers  in  charge  of 
the  ballot-boxes  to  produce  the  ballots  of  these  precincts,  knowing,  as  a 
lawyer,  that  that  was  the  best  and  therefore  the  propi-r  legal  evidence  of 
the  actual  vote  cast ;  and  when  the  officers  stood  ready  to  have  the  votes 
counted,  the  contestee  held  his  counsel  back,  and  permitted  the  ballot- 
boxes  to  be  returned  unopened.  W^as  this  done  because  he  preferred  to 
risk  the  throwing  out  of  706  of  his  majority  rather  than  have  the  secrets 
of  those  ballot-boxes,  where  the  votes  had  been  numbered,  revealed  to 
the  public  eye?  What  powerfid  motive  could  have  constrained  him  to 
such  a  course  t 

III  Williamsfi.  Stein  (381  id.  Rep.,  page  DO),  the  conrtheld  that  numboriugof  the  vot«a 
cast  violates  the  secrecy  of  the  ballot  as  much  as  if  the  law  had  required  the  voters 
t<j  vote  viva  voce;  and  McCrary  (American  Law  of  Elections,  section  446)  says, 
'•  Votes  must  be  cast  in  the  manner  provided  by  law.  Under  a  statute  requiring  that 
the  manner  of  vetiug  shall  be  liy  ballot,  votes  given  lira  roce cannot  be  counted." 

Upon  an  elaborate  review  of  the  authorities  the  conclusion  is  reached,  upon  what 
.  seems  to  be  good  ground,  that  in  this  country  the  ballot  implies  absolute  ana  inviolti- 


462  DIGEST  OF  ELECTION  CASES. 

We  secrecy,  and  that  this  doctrine  is  founded  in  the  highest  considerations  of  public? 
policy.  That  the  term  ballot  implies  secrecy,  and  that  this  mode  of  voting  was- 
adopted  mainly  to  enable  each  voter  to  keep  secret  his  vote,  is  clear.  (McCrary  on 
Elections,  section  413,  page  112,  and  authorities  there  cited;  C'ooley,  Constitutional 
Limitations,  pages  506,  oOl,  and  604.) 

The  chief  reason  for  the  general  adoption  of  the  ballot  in  this  country  is  that  it  af- 
fords to  the  voter  the  means  of  preserving  the  secrecy  of  his  vote.  And  this  enables- 
him  to  vote  independently  and  freely,  without  being  subject  to  be  overawed,  intimi- 
dated, or  iu  any  manner  controlled  by  others,  or  to  any  ill-will  or  persecution  on  ac- 
count of  his  vote.  The  secret  ballot  is  justly  regarded  as  an  important  and  valuable 
safeguard  for  the  protection  of  the  voter,  and  jiarticularly  of  the  humble  citizen 
against  the  influence  which  wealth  aud  station  may  be  supposed  to  exercise.  "  »  * 
All  devices  by  which  the  secrecy  of  the  ballot  is  destroyed  by  means  of  colored  paper 
used  for  ballots,  or  by  other  similar  means,  are  exceedingly  reprehensible,  and  whether 
expressly  prohibited  by  statute  or  not  should  be  discountenanced  by  all  good  citizens. 
(McCrary  on  Elections,  section  194;  People  vs.  Pease,  27  N.  Y..  pages  45  and  81). 

We  have  therefore  reached  the  couclusiou  that  the  votes  cast  in  the 
seven  precincts  where  the  ballots  were  numbered  should  be  deducted, 
not  alone  because  they  were  so  numbered,  but  because  such  numbering 
was  corruptly  done,  with  an  intent  to  intimidate  the  workiugmen  resid- 
ing in  those  precincts :  and  because  it  was  part  of  a  general  conspiracy 
of  the  friends  and  supporters  of  Mr.  Washburn  to  prevent  a  free  and 
untrammeled  expression  of  the  preferences  of  the  voters. 

SUPPLEMENTAL  RETURNS. 

Through  the  error  of  the  secretary  of  state  of  Minnesota  in  notfurnish- 
ing  the  proper  return-blanks  to  the  oflBcers  of  the  election  precincts  of 
the  State,  there  were  a  number  of  instances  where  the  votes  polled  for 
the  candidates  for  Congress  were  not  returned  to  and  counted  by  the 
county  canvassing  boards.  In  the  case  of  the  votes  not  so  returned  and 
canvassed  in  certain  precincts  of  the  counties  of  Stearns  aud  Morrison 
it  was  conceded  and  agreed  by  both  parties  that  the  votes  had  been 
cast  and  should  be  counted.  These  votes  were  as  follows  (see  page* 
260,284): 

STEARNS  COUNTT. 


Precinct. 


Crow  Lake 

Holding 

To WDsEip  of  Saint  Clond 

Sank  Centre 

f  oorth  ward,  city  of  Saint  Cload . 


Wasbbam.   j  Donnelly. 

I 


1 

7 

11 

26 

64 

7 

93 

96 

160 

-8 

68 

144  I  396 

Minority  foi"  Donnelly i 252 


MORRISON  COUNTY. 


Two  Rivers. 
Swan  River. 


Majority  for  Donnelly . 


30 
3« 

120 
45 

68 

165 
97 

Supplemental  returns  were  made  eight  days  after  the  election  by  some 
of  the  officers  of  three  precincts  of  the  city  of  Minneapolis ;  but  it  is 
very  clear  that  the  election  officers  of  the  precincts  had  performed  their 


DONNELLY    VS.    WASHLURN.  463^ 

duties  on  the  night  of  the  election ;  had  dissolved,  and  were  functus  of- 
ficio, and  had  no  right  to  make  any  such  supplemental  returns.  Mr. 
Washburn  claimed  majorities  in  eacli  of  these  precincts,  and  he  therefore 
nndertook  to  prove  the  votes  cast  aliumle.  lu  strictness  of  law  it  was 
his  duty  to  have  proved  the  votes  cast  by  the  best  evidence,  to  wit,  by 
counting  the  ballots  in  the  ballot-boxes  ;  and  he  took  some  preliminary 
steps  to  that  end,  issuing  a  subpcena  lieces  tecum  to  the  officers  who  had 
charge  of  the  ballot-boxes  to  appear  at  a  time  named,  in  order  that  the 
ballots  might  be  counted;  but,  as  we  have  shown,  for  some  reason 
he  refused  to  count  the  ballots.  There  was  a  wide  diversity  in  the 
evidence  as  to  one  of  these  precincts,  the  third  precinct  of  fourth 
ward,  one  side  claiming  that  Mr.  Washburn  had  a  majority  of  483  votes 
and  the  other  side  claiming  that  he  had  but  26  majority.  But  we  have 
not  felt  obliged  to  enter  into  these  questions,  inasmuch  as  two  of  these 
precincts,  viz,  the  second  precinct  of  the  second  ward  and  the  third  pre- 
cinct of  the  fourth  ward,  were  precincts  in  which  the  ballots  were  num- 
bered, and  they  have  been  already  disposed  of  in  our  finding  upon  that 
question.  In  the  other  precinct,  the  first  precinct  of  the  first  ward,^ 
there  was  a  conflict  of  testimony  as  to  what  the  vote  really  was ;  but 
the  burden  of  proof  establishes  to  our  satisfaction  that  in  this  precinct 
Washburn  received  140  votes  and  Donnelly  132 ;  and  although  this  was 
not  established  by  the  best  evidence  we  are  willing  to  admit  the  vote 
as  such. 

In  the  township  of  Leaf  Valley,  Douglas  County  (page  270),  Mr.  Don- 
nelly received  all  the  votes  cast  for  Congressman,  to  wit,  61  votes ;  they 
were  not  returned  or  counted  for  him.  These  votes  are  to  be  added  to 
the  respective  candidates. 

ISANTI   COUNTY. 

The  statutes  of  Minnesota  (section  19,  page  58,  revision  of  1866)  pro- 
vide that  the  county  canvassing  board  of  each  county  shall  consist  of 
the  county  auditor  and  two  justices  of  the  peace,  to  be  by  him  selected. 
In  the  case  of  Isanti  County  the  canvass  was  made,  the  votes  counted, 
and  the  return  made  by  the  county  auditor,  one  justide  of  the  peace,^ 
and  the  judge  of  probate  of  the  county.  (See  page  69,  printed  testimony  .y 
It  is  true  that  sub.  3,  section  1,  title  1,  chap.  3,  vol.  1,  Bissell's  Stat,  of 
Minn.,  provides  that  "  words  purporting  to  give  a  joint  authority  to 
three  or  more  public  officers  or  other  persons  shall  be  construed  as  giv- 
ing such  authority  to  a  majority  of  such  persons  or  officers."  If  the 
county  auditor  had  selected  two  justices  of  the  peace,  and  one  had 
failed  to  attend,  then  the  majority  present  might,  under  this  law,  have 
gone  on  and  acted ;  but  in  the  case  of  Isanti  County  the  county  auditor 
did  not  select  two  justices  of  the  peace  as  the  law  requi^d  ;  the  board 
of  canvassers,  therefore,  was  never  constituted  as  required  by  law^aud 
never  having  had  a  legal  existence,  there  could  be  neither  majority  nor 
minority  of  it. 

In  the  contested-election  case  of  Howard  vs.  Cooper,  of  Michigan^ 
Thirty-sixth  Congress  (see  Contested  Elections,  1864-'65,  page  282),  the 
Committee  on  Elections  say : 

Your  committee  have  rejected  the  vote  of  the  township  of  Van  Bureu.  The  law 
requires  that  the  board  of  iuspectors  shall  be  constituted  of  three  persons  in  number. 
The  proof  is  clear  that  there  were  but  two.  And  as  there  was  no  board  of  inspector* 
known  to  the  law,  your  committee  see  no  way  by  which  any  legal  effect  can  be  given 
to  the  returned  vote.     They  have  therefore  deducted  it. 

In  this  case  it  was  shown  that  there  was  a  statute  of  the  State  of 


464  DIGEST    OF    ELECTION    CASES. 

Michigan  precisely  the  same  as  that  just  quoted  from  Minuesota,  giv- 
ing a  majority  of  a  board  the  power  to  act  for  the  whole  board ;  but  the 
committee  did  not  consider  that  it  was  sufficient  to  permit  them  to  re- 
ceive and  count  the  return. 

But  if  we  will  suppose  that  the  board  of  county  canvassers  of  Isanti 
Oonnty  had  been  duly  constituted  as  required  by  law,  and  that  a  ma- 
jority had  the  power  to  act  for  the  whole  board,  nevertheless  the  return 
could  not  be  received,  for  it  appears  upon  its  face  that  a  third  party, 
not  a  member  of  the  board,  a  stranger  not  qualified  to  act,  an  usurper 
-without  color  of  authority,  intruded  himself  into  the  deliberations  of  the 
board  and  acted  as  one  of  them,  and  in  all  cases  where  the  county  au- 
ditor and  the  justice  of  the  peace  differed  in  opinion  he  gave  the  casting 
vote,  and  thus  decided  the  action  of  the  board.  The  statutes  of  Min- 
nesota show  that  a  judge  of  probate  has  none  of  the  functions  of  a  jus- 
tice of  the  peace,  and  the  constitution  of  the  State  (section  7,  article  VI) 
provides  that  a  probate  court  "  shall  have  no  other  jurisdiction  except 
the  estates  of  deceased  persons  and  persons  under  guardianship." 
There  is  no  testimony  to  show  that  this  judge  of  probate  was  at  the 
same  time  a  justice  of  the  peace,  and  if  he  had  been,  his  exercise  of  the 
oflBce  of  justice  of  the  peace  would  have  been  incompatible  with  the 
«pirit  of  the  constitution  of  the  State. 

In  the  case  of  Jaaies  Jackson  vs.  Gen.  Anthony  Wayne  (Clark  & 
Hall,  page  47),  a  Georgia  case,  decided  in  1791,  it  was  held  that  "where 
the  law  requires  three  magistrates  to  preside  at  an  election,  and  a  re- 
turn was  made  by  three  i>ersons,  two  of  whom  were  not  magistrates, 
the  return  was  defective,"  and  the  vote  of  the  county  was  rejected. 

In  the  case  of  Rufus  E  iston  vs.  John  Seott  (Clark  &  Hill,  page  272), 
a  Missouri  case,  decided  in  1816,  held  :  "  If  an  election  is  required  by  law 
to  be  held  by  three  judges  who  are  required  to  be  sworu,  and  it  is  held 
by  two  not  sworn,  their  proceedings  are  irregular,  and  the  votes  taken 
by  them  are  to  be  rejected." 

In  the  case  of  Sloan  vs.  Rawls  (Contested  Election  Cases,  1871-'76, 
page  144),  a  Georgia  case,  decided  in  1874,  it  was  held  that  a  county 
canvass  or  consolidated  return  of  the  vote  of  the  county  of  Bullock  (con- 
taining 1,061  votes),  should  be  rejected,  although  the  same  was  in  due 
form  aud  with  the  names  of  the  proper  officers  signed  to  it,  because  it 
appeared  that  the  canvass  was  made  by  a  usurper,  a  stranger,  a  man 
^'  who  had  no  legal  connection  whatever  with  the  election,  and  no  right 
to  the  possession  of  any  of  the  papers." 

It  is  urged  that  although  the  judge  of  probate  was  not  a  justice  of  the 
peace,  we  must  regard  him  as  such  de  factx).  Lord  Ellenborough  said, 
in  The  King  vs.  The  Corporation  of  Bedford  Level  (6  East.,  368) : 

An  officer  de  facto  is  one  who  ha*  the  reputation  of  being  the  officer  he  assnnies  to 
be,  and  is  not  a  good  officer  in  point  of  law. 

Charles  O'Conor,  in  his  argument  before  the  Electoral  Commission, 
said  (see  Electoral  Commission,  page  132) : 

The  de  facto  officer  is  one  who  somehow  has  clothed  himself  with  the  reputation  of 
being  the  officer,  and  in  relation  to  that  person  the  law,  with  its  wise  conservation,  has 
declared  that  during  the  period  that  the  person  pretending  lith  to  the  office  was  in  ap- 
parent possession  of  all  its  powers  and  functions,  and  exercised  the  duties  of  it,  lus 
acts,  as  it  respects  persons  who  in  the  ordinary  course  of  things  were  obliged  to  rec- 
ognize him  and  to  act  under  him,  and  in  conformity  with  his  directions  and  his  power, 
shall  be  esteemed  valid,  that  individuals  man  "<"  be  deceived  by  this  species  of  disorder 
or  temporary  insurrection  that  has  broken  in  upon  the  functions  of  government. 

The  principle  does,  not  apply  to  the  case  under  consideration. 

Here  the  judge  of  probata  did  not  claim  to  be  a  justice  of  the  peace  j 


DONNELl-Y    VS.    WASHBURJT.  4^5 

he  did  not  exercise  the  duties  of  the  oflBce  under  color  of  law ;  he  did 
not  exercise  them  at  all :  he  distinctly  claimed  that  he  was  a  judge  of 
.probate  and  nothing  else.  It  has  never  been  pretended,  in  any  court  in 
the  world,  that  when  A  B  asserts  himself  to  be  the  incumbent  of  one 
office  a  presumption  of  law  arises  that  he  holds  another,  an  entirely  dif- 
ferent, and  (as  in  this  case)  an  incompatible  office. 

A  party  claiming  to  be  a  Judge  of  an  election  precinct,  or  a  sherift',  or 
a  .judge  may  deceive  and  mislead  innocent  third  parties  to  their  dam- 
age ;  and  hence  the  law  wisely  says  that  he  who  deals  with  such  officers 
shall  not  be  required  to  go  back  and  inquire  into  every  particular  of 
their  title.  But  in  this  case  there  is  no  pretense  that  any  one  was  or 
could  have  been  misled  by  the  declaration  of  the  judge  of  i)robate  that 
he  was  the  judge  of  probate. 

Neither  is  tliis  a  collateral  proceeding  between  third  parties.  The 
validity  of  the  return  itself,  and  the  right  of  the  judge  of  probate  to  act, 
are  the  very  questions  in  issue.  Tlie  canvassing  board  of  Isanti  County 
was  part  of  the  machinery  by  which  the  votes  cast  for  member  of  Con- 
gress in  that  district  is  to  be  brought  to  the  knowledge  of  the  House  of 
Itepresentatives,  "tlie  sole  judge  of  the  election  returns  of  its  members." 

It  must  also  be  remembered  that  in  the  cases  cited,  as  decided  by 
former  Congresses,  the  votes  of  townships  were  cast  out  because  the  boards 
of  election  judges,  or  the  clerks  thereof,  were  not  constituted  according 
to  law.  This  being  the  law  as  to  mere  precinct  officers,  how  much  more 
strongly  does  the  i)rinciple  apply  to  the  case  of  a  canvassing  board  of  a 
county  where  the  votes,  not  of  one  precinct  alone,  but  of  all  the  pre- 
cincts of  the  county  are  involved  ?  An  election  judge  can  only  rnle  out 
a  few  voters,  a  canvassing  board  may  rule  out  the  votes  of  entire  town 
ships.  Although  the  canvassing  board  is  a  ministerial  body,  neverthe- 
less there  are  many  preliminary  questions  upon  which  they  are  called 
to  decide,  and  which  require  the  exercise  of  their  best  judgment. 
Among  these  are  the  following:  Whether  the  returns  are  the  actual  re- 
turns or  forgeries ;  whether  they  are  so  informal  or  irregular  as  to  pre- 
vent the  board  «letermining  what  the  vote  really  was;  if  two  returns  come 
in  from  the  same  precinct,  which  is  the  proper  return ;  if  votes  are  cast 
bearing  a  name  nearly  the  same  or  somewhat  similar  to  the  name  of 
one  of  the  candidates,  whether  they  should  be  counted  for  such  candi- 
date; if  votes  are  cast  for  A  B  (who  is  a  candidate  for  Congress)  as 
a  candidate  for  the  State  legislature,  whether  such  vot«s  shouhl  be  re- 
turned for  him  as  a  candidate  for  Congress.  These  and  a  hundred  other 
similar  questions  may  arise  requiring  the  exercise  of  judgment;  and 
per  consequence  the  functions  of  the  board  of  county  canvassers  is  as 
far  superior  to  the  functions  of  mere  election  officers  as  the  powers  of  a 
State  canvassing  board  are  above  the  powers  of  a  county  canvassing 
,  board.  How  important,  then,  does  it  become  that  the  county  board  of 
canvassers  shall  be  constituted  in  strict  conformity  with  law.  and  that 
no  usurpers  shall  be  permitted  to  intrude  into  and  control  its  delibera- 
tions. 

In  the  case  of  Delano  vh.  Morgan,  Ohio  (2  Bartlett,  page  171),  it  seems 
that  a  person  acted  as  one  of  the  judges  of  election  who  was  believed 
to  have  been  a  deserter,  but  had  never  been  convicted  of  the  crime.  The 
Committee  on  Elections  say  (and  the  House  sustained  the  report) : 

In  tluscaseof  Howard !•«.  Cooper,  (Cont.  Elect.  1864-'65,  page  28'2),thereturn8of  Vao 
Bnreii  Township  were  rejected  because  there  were  only  two  judges.  If  a  return  is  un- 
trustworthy when  one  of  the  judges  is  absent,  it  is  certainly  more  so  if  the  vacancy 
is  filled  Itya  person  disqualified  to  act.  Two  competent  judges  are  certainly  more  re- 
liable, when  acting  by  themselves,  than  when  advised,  directed,  and  in  part  over- 
ruled by  a  third,  pronounced  by  the  law  unfit  for  the  trust. 

H.  Mis.  58 30 


466  DIGEST    OF   ELECTION   CASES. 

In  Morgau  vs.  Delano,  the  disqualification  of  this  third  pai'ty  was  in- 
ferential ;  for  as  he  had  never  been  convicted  of  desertion  the  presump- 
tion of  law  was  that  he  was  not  guilty ;  but  in  the  case  of  the  canvass- 
ing board  of  Isanti  County  the  disqualification  of  the  judge  of  probata 
was  statutory,  absolute,  and  appears  on  the  face  of  the  return. 

If  the  objection  to  this  return  was  purely  technical  we  might  hesi- 
tate to  reject  it ;  but  it  appears  that  the  bona  fides  of  the  vote  were  put 
in  issue  by  the  pleadings. 

The  contestant,  Donnelly,  in  his  notice  of  contest,  article  VIII,  de- 
clared : 

That  tlie  votes  alleged  to  have  been  cast  for  you  (Washburn),  at  said  election  in 
the  county  of  Isanti,  m  said  district,  were  not  cast  or  counted  for  you,  or  returned  or 
canvassed  as  provided  by  law. 

There  are  here  four  averments  :  (I)  That  the  votes  were  not  cast ;  (2) 
that  they  were  not  counted  (by  the  precinct  officers) ;  (3)  that  they  were 
not  returned  as  provided  by  law  :  (4)  that  they  were  not  canvassed  as 
provided  by  law.  The  contestant  having  established  by  the  return  it- 
self, the  truth  of  the  last  two  charges,  it  became  the  duty  of  the  sitting 
member  to  prove  by  a  counting  of  the  votes  in  the  ballot-boxes  that 
the  votes  were  actually  cast  as  claimed  by  him,  and  by  proper  testi- 
mony that  they  were  duly  counted  by  the  precinct  officers.  As  he  has 
failed  to  do  this,  the  presumption  of  law  is  that  he  was  unable  to  do  if. 
There  was  no  obligation  upon  the  part  of  the  contestant  to  prove  or 
disprove  votes  that  had  no  existence  before  the  committee  in  any  legal 
return,  while  Mr.  Washburn  well  knew  that  the  fact  of  any  such  vote 
being  cast  in  the  county  was  denied  by  contestant  and  that  the  burden 
of  proof  was  on  him  to  prove  it.  The  committee  has  no  way  to  ascer- 
tain the  votes  cast  except  by  the  official  return,  and,  where  this  is  mani- 
festly voidj  by  testimony  showing  what  the  vote  really  was. 

POLK  AND  KITTSON    COUNTIES. 

The  return  upon  which  the  votes  of  these  counties  is  based  is  ex- 
tremely imperfect.    It  is  as  follows  (page  64) : 

jAbstract  of  votes  cast  \n  the  county  of  Polk  4'  Kittson  and  State  of  Minnesota  at  the  general 
election  held  in  the  several  totcnships  and  xcards  of  said  county  on  the  first  Tuesday  after 
the  first  Monday,  ieing  the  fifth  day  of  November.  A.  D.  eighteen  hundred  and  seventy-eight 
(1878),  for  members  of  Congress,  taken  from  the  official  returns. 

MEBiBKR  OF  CONGRESS— CONGRESSIONAL  DISTRICT— IfAMES  OF  CANDIDATES. 


Nunes  of  townships  and  wards. 


a 


Bypland 

Farley 1        9  1        24 

Vineland 35  ;         7 

Fosum I      60  ! 

Andover 21 

Red  Lake  Falls 

Lowell 

McDonaldville 

Ist  distaict 

Fisher 

HantsTille 

Nelly 

Crookston i-- 

KittsonCo.,  Tamrac  River 

Kitt-son  Co.  Two  Rivers 


78 

« 

26 

Ifr 

36 

15 

28 

37 

ii 

4S 

19 

41 

213 

45 

109 

1 

74 

1 

Total  nnmber  of  votes '    832  ,      182 


DONNELLY    VS.    WASHBURN.  467 

We  do  hereby  certify  that  at  said  electiou  W.  D.  Washburn  received  eight  hundred 
and  thirty-two  (832)  votes  for  member  of  Congress ;  I.  Donnelly  received  one  hun- 
dred and  eightv-two  (182)  votes  for  member  of  Congress. 

A.  YVERNAULT, 

County  Auditor. 

Attest : 

D.  C.  PALMER, 
T.  A.  HARRIS, 

Justices  of  the  Peace. 

There  is  an  unorganized  county  of  Kittson  in  the  third  Congressional 
district  of  Minnesota,  as  appears  by  the  abstract  of  votes  returned  by 
the  secretary  of  state  (page  347),  and  there  is  also  an  organized  county 
of  Polk  ;  but  there  is  no  "  county  of  Polk  and  Kittson."  (See  page  346.) 
And  there  is  no  law  linking  these  counties  together.  It  appears  by  the 
testimony  (page  40)  that  "the  county  of  Kittson  is  not  attached  to  any 
other  county  for  any  purpose,  either  judicial  or  election."  The  county 
out  of  which  it  was  created,  Pembina  County,  was  attached  to  Clay 
County  (Stat,  of  Minn.,  1876,  [p.  127).  If,  therefore,  any  part  of  the 
above  returns  refer  to  the  unorganized  county  of  Kittson  they  should 
not  have  been  returned  to,  canvassed  with,  or  mixed  into  the  returns  of 
the  organized  county  of  Polk.  The  foregoing  ceititicate  is  uot  a  return 
of  votes  cast  in  Polk  County  or  of  votes  cast  in  Kittson  County,  but 
the  vote  is  lumped  together  as  the  vote  of  "  the  county  of  Polk  and 
Kittson,"  and  there  is  no  such  county  in  the  district.  And  if  we  at- 
tempt to  separate  the  precincts  in  Kittson  County  from  the  precincts  in 
Polk  County,  so  as  to  enable  the  county  of  Polk  to  be  counted  by  itself, 
we  are  met  by  the  fact  that  Farley  is  shown  by  the  testimony  (page  226) 
to  be  in  Kittson  County,  although  there  is  nothing  on  the  face  of  the  re- 
turn to  show  that  fact.  There  is  no  evidence  to  show  in  which  county 
the  precincts  of  Bygland,  Vineland,  Folsom,  Andover,  Lowell,  McDon- 
aldville,  first  district,  Huntsville,  and  J^elly  are  situated.  Neither  does 
it  appear  by  the  return  or  in  the  evidence  that  the  county  auditor  and 
justices  of  the  peace  who  signed  the  return  held  those  offices  in  Polk 
County  or  in  Kittson  County,  or  in  any  other  county. 

Moreover  it  appears  (page  233)  that  there  were  but  86  legal  votes  cast 
at  Crookston,  while  the  total  vote  returned  as  above  was  258.  There  were 
therefore  170  illegal  votes  cast  at  that  precinct;  they  were  principally 
the  railroad  haiuls  referred  to  in  this  report  in  our  consideration  of  the 
subject  of  bribery,  every  one  of  whom  was  paid  for  his  vote.  It  also 
appears  (page  234)  that  there  were  but  40  residents  of  the  precinct  of 
Fisher,  while  88  votes  are  returned  from  that  precinct.  The  precincts 
in  the  county  of  Kittsou  were  not  legally  established,  there  being  no 
law  to  authorize  the  governor  to  create  election  precincts  in  wholly  un- 
organized counties.  There  were  no  registration  lists  at  these  precincts  ; 
cigar-boxes  and  candle-boxes  without  locks  or  keys  were  used  for  bal- 
lot boxes.  In  one  precinct  the  voting  place  was  a  railroad  car  ;  in  an- 
other a  railroad  depot.  Nearly  if  not  quite  every  vote  polled  in  two  pre- 
cincts of  the  county,  as  we  have  shown,  was  a  bribed  vote,  and  caj?t  in 
the  majority  of  instances  by  men  who  were  not  legally  residents  of  the 
county  and  entitled  to  vote  therein. 

This  fraudulent  vote  of  Kittson  County  having  been  inextricably 
mixed  into  whatever  legal  votes  were  cast  in  Polk  County,  it  became 
the  duty  of  the  sitting  member  to  go  behind  this  very  defective  certifi- 
cate of  "  the  county  of  Polk  and  Kittson"  and  prove  aWMurfe  what 
townships  were  in  Polk  County,  and  by  a  count  of  the  ballots  in  the 
ballot-boxes  of  those  townships  establish  beyond  question  what  votes 


468  DIGEST  OF  ELECTION  CASES. 

■were  legally  cast  therein.    Having  failed  to  do  this  we  are  constrained 
to  reject  the  return. 

THE   UNORGANIZED   COUNTIES. 

It  appears  by  the  evidence  that  a  number  of  the  counties  in  the  third 
"Congressional  district  of  Minnesota  are  unorganized  counties.  The  fol- 
lowing table  gives  the  names  of  the  counties  and  the  votes  cast  therein : 


Big  Stone . 
Douglas... 
Kanabec  . . 

Lake 

Otter  Tail. 


^ 

1 

■? 

45 

29 

682 

4S9 

109 

24 

29  1 

755 



940  |. 

1, 805  I    1, 297  ! 
Msyority  for  Washburn ' 1         503 


It  was  decided  by  the  supreme  court  of  the  State  of  Minnesota,  July 
29, 1878,  in  the  case  of  State,  ex  rel.  Lindholm,  y«.  Parker,  that  the  county 
of  Big  Stone  was  not  an  organized  county,  inasmuch  as  the  legislature 
had  never  passed  an  act  declaring  it  organized.  The  court  held  that 
neither  an  act  defining  the  boundaries  of  a  county  nor  the  vote  of  the 
people  therein  electing  county  officers  constituted  a  county  organized  ; 
the  legislature  must  recognize  the  action  of  the  people  by  explicitly  de- 
claring it  an  organized  county.  The  counties  of  Douglas,  Kanabec, 
Lake,  and  Otter  Tail  are  in  the  same  condition  as  the  county  of  Big 
Stone.  Mr.  Washburn  did  not  produce  any  statute  to  show  that  the  leg- 
islature had  ever  declared  either  of  them  organized.  It  follows  that  if 
these  counties  are  not  organized  counties  there  can  be  no  county  officers 
in  existence  therein  ;  and  that  those  who  claim  to  have  canvassed  and 
returned  the  votes  of  the  counties  had  no  power  to  do  so ;  nor  can  there 
be  any  legal  election  precincts  therein.  But  your  committee  ai'e  not 
disposed  to  take  a  technical  view  of  this  matter,  and  although  we  are 
of  opinion  that  the  counties  in  question  are  not  legally  organized,  never- 
theless, as  the  votesji*eturued  are  conceded  to  have  been  actually  cast 
therein,  and  there  is  no  charge  of  fraud,  we  have  concluded  that  the  four 
counties  last  named  should  be  regarded  as  de  facto  organized  counties, 
so  far  at  least  as  election  purposes  are  concerned.  We  also  admit  the 
A'ote  cast  in  the  unorganized  county  of  Big  Stone,  for  the  reason  that 
it  is  atlmitted  by  contestant  that  the  vote  was  actually  cast;  and  there 
is  no  charge  of  fraud  in  connection  therewith. 

We  therefore  admit  the  votes  of  these  unorganized  counties.  They 
give  a  majority  for  Mr.  Washburn  of  508. 

It  will  be  seen  that  in  the  foregoing  report  we  have  not  rejected  the 
vote  of  any  county  because  it  was  unorganized ;  neither  have  we  re- 
jected the  vote  of  any  precinct  because  of  the  numbering  of  the  ballots 
perse,  but  because  such  numbering  was  one  of  the  incidents  of  a  system 
of  fraud  and  intimidation ;  neither  have  we  rejected  the  votes  of  any 
counties  for  mere  informalities  on  the  face  of  the  returns,  but  only  for 
•those  gross  irregularities  which  were  manifestly  incompatible  with  u 
legal  canvass  of  the  votes. 

The  following  table  summarizes  the  results  of  our  investigations  in 
this  case : 


DONNELLY    VS.    WASHBURN.  469 

SITMMARY. 

The  total  vote  returned  for  William  D.  Washbnm  was 20, 942 

Thi8  includes  the  supplemental  returns  from  Hennepin  County. 

Add  to  this  the  votes  cast  but  not  returned  for  him,  in  the  counties  of  Stearns 
and  Morrison,  viz  :  Stearns,  144  ;  Morrison,  68 — total 212 

21,154 
Deduct : 
The  numbered  ballots  cast  for  him  in  the  seven  precincts  of  Minneapolis, 

viz 2,282 

The  vote  returned  for  him  in  the  county  of  Isanti 538 

The  vote  returned  for  him  from  "the  county  of  Polk  and  Kittson  " 832 

3,652 

17,  502 
Deduct  .also  the  followingbribedvote8(notincludedin  the  bribed  votes  already 
rejected  in  Polk  and  Kittson  County),  where  the  evidence  shows  the  party 
received  nioney  and  voted  for  Washburn  :  (1)  Olnf  Larson,  Saint  Paul ;  (2) 
■  Abraham  Werrick,  Saint  Paul;  (3),  William  M.  Leyde,  Cottage  Grove  ;  (4) 
Christian  Heyer,  Afton  ;  (5)  John  C.  Oleson, Minneapolis;  (6)  A.  M.'Schaack, 
Minneapolis;  (7)  Karl  Fintler,  Minneapolis;  (8)  Henry  Monroe;  (9)  Sevit 
Mahla,  of  Minneapolis;  (10)  Louis  Knudson,  Minneapolis;  (11)  Louis  Paulson, 
Minneapolis  ;  (12)  W.  R.  Metcalf,  of  Crystal  Lake ;  (13)  Peter  Quady,  Minne- 
apolis ;  (14)  Louis  N.  Gayuor,  Minneapolis  ;  (15)  Poter Engberg,  Minneapolis; 
(16)  Bernard  Cloutier,  Minneapolis;  (17)Toleff  G.  Fladeland,  of  Sauk  Cen- 
ter: (18)  J.  V.  Brower,  of  Saint  Cloud;  (19)  A.  J.  Clark,  Little  Falls;  (20) 
Thomas  Kitowski,  of  North  Prairie;  (21)  Mr.  Buss,  of  Long  Prairie;  (22) 
Henry  Armstrong,  of  Two  Rivers  [this  list  does  not  include  a  large  number 
who  admit  the  receipt  of  money  from  Washburn  or  his  friends  but  claim 
that  they  voted  for  Donnelly]— total 22 

17,  480 

Total  vote  returned  for  Ignatius  Donnelly 17,920 

Add  to  this  the  votes  cast  but  not  returned  for  him  from  the  counties  of 
Stearns,  Morrison,  and  Douglas  viz:  Stearns,  396;  Morrison,  165;  Douglas 
61:  total 622 


18,551 
Deduct : 
The  numbered  ballots  cast  for  him  in  the  seven  precincts  of  Minneapolis, 

vig 522 

The  vote  returned  for  him — in  the  county  of  Isanti 137 

The  vot«  returned  for  him  from  the  county  of  Polk  and  Kittson 182 

841 


17,710 


Total  vote  for  Donnelly 17, 710 

Total  vote  for  Washburn 17,480 

Majority  for  Donnelly 230 

We  would  therefore  report  and  recommend  the  adoption  by  the 
House  of  llie  following  resolutions  : 

Resolved,  That  William  D.  Washburn  is  not  entitled  to  his  seat  as  a 
member  of  the  Forty-sixth  Congress  of  the  United  States,  as  Represent- 
ative from  the  third  Congressional  district  of  the  State  of  Minnesota. 

ReHolved.  That  Ignatius  Donnelly  is  entitled  to  his  seat  as  a  member 
of  the  Forty-sixth  Congress  as  Representative  from  the  third  Con- 
gressional district  of  the  State  of  Minnesota. 

VAN  H.  MANNING. 
S.  L.  SAWYER. 
R.  F.  ARMFIELD. 
F.  E.  BELTZHOOVER. 
I  W.  G.  COLERICK. 


470  DIGEST    OF    ELECTION    CASES. 

VIE-SVS    OF   XKE    MIINORITY. 

Held,  That  no  bribery  on  the  part  of  contestee  or  hia  agents  is  proven,  the  only  evi- 
dence touching  on  that  point  being  hearsay.  Bribery  must  be  proved,  and  not 
presumed.     Fraud  or  bribery  does  not  vitiate  what  it  does  not  impregnate. 

Held,  That,  notwithstanding  ballots  are  numbered  in  the  absence  or  violation  of  law, 
they  are  to  be  counted. 

Held,  That  where  the  law  requires  certain  acts  to  be  performed  by  a  board  of  three 
or  more  persons,  it  is  suflficient  for  a  majority  of  such  board  to  act  and  join  in  the 
certificate. 

Mr.  Keifeb,  from  the  Committee  on  Elections,  submitted  the  following 

VIEWS    OF   A    MINORITY. 

The  contest  in  this  case  arises  over  the  election  for  member  of  the 
House  of  Eepresentatives  in  the  third  Congressional  district  of  the  State 
of  Minnesota,  held  on  the  5th  day  of  November,  1878.  This  district  is 
composed  of  thirty-eight  counties,  situate  in  the  northern  part  of  that 
State,  and  comprises  a  very  large  territory,  which  has  been  very  rapidly 
settling  up  by  emigration  from  other  States  in  the  Union.  The  returned 
vote  at  that  election  for  member  of  the  House  of  Representatives  was 
as  follows : 

W.  D.  Washburn 20, 942 

Ignatius  Donnelly 17, 929 

Scattering 40 

1  he  returned  majority  for  Washburn  was 3, 013 

This  district  was  created  on  the  22d  day  of  February,  1872,  by  act  of 
the  legislature  of  Minnesota.  It  has  always  been  Republican  by  a  large 
majority.  The  Republican  majority  for  Congressman  in  this  district  in 
1872  was  6,449 ;  in  1874,  2,319 ;  in  1876,  2,096 ;  in  1878,  3,013.  The  Re- 
publican majority  in  this  district  for  governor  in  1877  was  8,153,  and  in 
1879  Pillsbury's  (Rep.)  majority  over  Rice  (Dem.)  was  5,681. 

A  portion  of  the  committee  have  decided  to  add  to  Mr.  Washburn's  returned 

vote  of 20,942 

The  unretumed  vote  in  the  counties  of  Steams  (144)  and  Morrison  (88) 212 

Thus  increasing  his  vote  to 21, 154 

From  this  it  is  proposed  to  deduct  by  throwing  out  and  rejecting — 
The  numbered  ballots  cast  for  him  in  seven  precincts  of  Minneapolis, 

to  wit 2, 282 

The  entire  vote  returned  for  him  in  the  county  of  Isanti 538 

The  total  vote  returned  for  him  Irom  the  counties  of  Polk  and  Kittson . .       832 
Alleged  bribed  votes -       22 

Total  to  be  deducted 3, 674 

Leaving  Mr.  Washburn's  vote 17, 480 

It  is  further  proposed  to  add  to  Mr.  Donnelly's  returned  vote  of 17, 920 

The  unreturned  votes  alleged  to  have  been  cast  for  him  in  the  counties  of 
Steams,  Morrison ,  and  Douglas 622 

Thus  increasing  his  vote  to 18,551 

From  this  it  is  proposed  to  deduct  the  numbered  ballots  cast  for  him 

in  the  city  of  Minneapolis 522 

The  vote  returned  for  him  in  the  county  of  Isanti 137 

The  vote  returned  for  him  in^he  counties  of  Polk  and  Kittson 182 

Total  to  be  deducted 841 

Making  Donnelly's  vote 17, 710 

And  his  majority  over  Mr.  Washburn 230 


DONNELLY    VS.    WASHBURN.  471 

The  testimony  in  this  case,  and  the  arguments  of  counsel,  have  com- 
pelled the  committee  to  examine  a  great  many  questions  foreign  to  the 
contest,  as  made  on  the  contestant's  notice.  That  notice  consists  of 
nine  paragraphs,  very  few,  if  any,  of  which  state,  as  required  by  the 
law  of  Congress,  except  in  very  general  terms,  the  grounds  upon  which 
the  contestant  relies.  The  law,  as  set  forth  in  section  105  of  the  Revised 
Statutes,  requires  that  the  contestant,  in  his  notice,  shall  specify  partic- 
ularly the  grounds  upon  which  he  relies  in  the  contest.  This  the  con- 
testant has  not  done,  although  the  nature  of  his  contest  is  such  that  he 
could  have  done  so,  and  should  iiave  been  required  to  do  so;  or,  other- 
wise, tlie  great  mass  of  his  testimony  should  have  been  disregarded.  The 
United  States  statute  requires  that  "the  testimony  to  be  taken  by  either 
party  to  the  contest  shall  be  confined  to  the  proof  or  disproof  of  the 
factsalleged  or  denied  in  the  notice  or  answer,"  &c.    (R.  S.,  section  105.) 

It  may  be  true  that  the  law  of  Congress  prescribing  the  mode  of  practice 
to  be  followed  in  the  House  in  contestecl-election  cases  is  not  absolutely 
binding  upon  the  House  in  view  of  the  provisions  of  the  Constitution 
of  the  United  States  (Article  I,  section  5),  which  provide  that  "each 
house  shall  be  the  ju^lge  of  the  elections,  returns,  and  qualifications  of 
its  own  members."  But  it  might  work  very  great  injustice  to  a  con- 
testee  to  require  him  to  meet  a  case  outside  of  this  parliamentary-prac- 
tice act,  without  any  previous  notice  to  him  that  the  House  intended 
to  depart  from  it  in  a  material  respect. 

Until  the  House  itself  lays  down  and  prescribes  a  diflferent  mode  of 
contesting  elections  before  it,  the  parties  to  the  contest  have  a  perfect 
right  to  rely  upon  the  statute  being  strictly  observed  and  followed. 
OlcCrary's  Election  Laws,  sections  341-3,  348-9,  353;  Finley  vft.  Bisbee, 
Rep.  95,  page  28.) 

It  ha^  frequently  been  held  by  the  House  that,  notwithstanding  proof 
was  offered  sufficient  to  show  that  frauds  had  been  committed,  such 
proof  would  not  be  considered  because  the  contestant  did  not  specifi- 
cally notify  the  contestee  of  such  ground  of  contest. 

For  a  full  discussion  of  this  point,  attention  is  called  to  the  views  of 
the  late  Speaker  Kerr  in  the  case  of  Delano  vs.  Morgan  (Com.  Elec. 
Cases,  18(»5-'7l,  ])ages  17G-8). 

Before  proceeding  to  consider  the  case  as  made  by  the  notice  and  on 
the  testimony,  it  is  thought  proper  to  refer  to  the  character  of  evidence 
relied  upon  by  the  contestant.  It  will  be  found  by  an  examination  of 
the  record  that  there  is  very  little,  if  any,  testimony  which  would  be 
received  or  considered  in  any  court  of  justice  in  this  or  any  other  civ- 
ilized country.  The  testimony  may  be,  generally,  denominated  hearsay. 
In  so  far  as  it  relates  to  the  question  of  bribery  or  illegal  voting  very 
little  of  it  rises  even  to  the  dignity  of  hearsay  when  scrutinized.  It  is 
understood  that  certain  members  of  the  committee,  in  order  to  arrive  at 
the  conclusion  reached  by  them,  have  considered  all,  or  very  nearly  all, 
of  such  incompetent  testimony  found  in  the  record.  With  the  single 
exception  that  in  the  case  of  a  voter  who  has  voted  for  the  sitting 
member,  declarations  of  the  voter  are  inadmissible.  There  are  author- 
ities, though  they  even  are  douV)ted,  to  the  effect  that  the  declarations 
of  a  voter,  though  hearsay  evidence,  are  competent  to  prove  his  want 
of  qualification  to  vote.  It  is  seldom,  if  ever,  proper  to  regard  hearsay 
statements  as  competent  evidence.  Regarding  the  testimony  as  attect- 
ing  the  voter,  and  no  other  person,  his  statement  as  to  his  qualification 
to  vote  may  be  taken  as  an  admission  against  him.  The  ordinary  rules 
of  evidence  apply  as  well  to  election  contests  as  to  other  cases.  (See 
McCrary's  American  Law  of  Elections,  section  306.)     We  do  not  think 


472  DIGEST    OF    ELECTION    CASES. 

it  necessary  to  cite  many  authorities  in  supi)ort  of  this  proposition,  but 
we  here  give  a  few,  as  this  question  is  a  very  important  one  in  the 
determination  of  this  case: 

AUTHORITY   AS    TO    HEARSAY    EVIDENCE      IN      CONTESTED-ELECTION     CASES     BEFOKE: 

PARIJAMENTARY   BODIES. 

In  Cnshing's  Law  and  Practice  of  Legislative  Assemblies,  at  section  210,  page  76, 
the  following  doctrine  is  laid  down : 

**Tbe  same  general  rules  by  wbich  courts  of  law  are  governed  in  regard  to  evidence 
in  proceedings  before  them  prevail  also  in  the  investigation  of  cases  of  controverted 
elections;  but  inasmuch  as  a  legislative  assemblj',  touching  things  appertaining  to  its 
cognizance,  is  'as  well  a  council  of  stat«  and  court  of  equity  and  discretion,  as  a  court 
of  law  and  justice,' the  legal  rules  of  evidence  are  generally  applied  by  election  com- 
mittees, more  by  analogy  and  according  t«  their  spirit,  than  with  the  technical  strict- 
ness of  the  ordinary  judicial  tribunals." 

Section  11.  "The  rule  stated  in  the  i>receding  paragxaph  relates  of  course  only  to- 
investigations  by  the  testimony  of  witnesses  or  other  evidence  liefore  the  assembly  or 
its  committees,  but  where  the  testimony  is  contained  in  depositions,  they  ought  to  be 
taken  according  to  the  law  of  the  State  where  they  are  taken." 

Section  742,  page  293.  "The  proceedings  of  a  legislative  assembly  frequently  render 
it  necessary  to  institute  inquiries  into  matters  of  fact,  and  of  course  to  receive  and 
jndge  of  the  various  kinds  of  evidence  upon  which  human  conduct  is  predicated,  and 
which  may  be  submitted  to  its  cousideration.  In  the  every-day  affairs  of  life,  and  in 
reference  to  matters  in  which  their  own  interests  are  alone  involred,  men  act  upon  every 
kind  of  evidence  which  has  even  the  slightest  tendency  to  induce  belief.  Butin  regard 
to  affairs  in  which  parties  are  adversely  interested,  and  intchick  thei-e  are  conflicting  rights 
and  claims  to  be  adjudicated,  the  law  has  wisely  provided  that  only  such  evidence  shall 
be  received,  and  under  such  circumstances,  as  shall  afford  reasonable  security  both 
against  designed  falsification  and  unintentional  mistake." 

Section  743,  page:  293.  "The  rules  of  evidence  by  which  courts  of  justice  are  gov- 
erned, and  by  which  their  proceedings  are  regulated  in  the  iuvestigation  of  the  cases 
which  come  before  them,  make  a  part  of  the  civil  rights  of  the  citizens,  as  much  as 
the  rules  regulating  the  acquisition,  the  enjoyment,  or  the  transmission  of  property,  or 
which  govern  any  other  matter  of  civil  right ;  and  when  a  question  of  the  same  nature 
is  pending  in  the  legislature,  involving  private  interests  only,  no  good  rea.son  can  be 
assigned  why  the  rules  of  evidence  should  not  be  the  same.  It  would  seem  reasonable,^ 
therefore,  to  regard  it  as  a  rule  of  parliamentary  practice  that  when  the  private  in- 
terests of  individuals  are  the  subject  of  investigation,  or,  in  other  words,  whore  the 
iiivestigation  isa  judicijil  one,  and  so  far  as  it  is  of  that  character,  the  same  or  analogous 
rules  of  evidence  should  be  applied  ae  would  be  observed  in  the  investigation  of 
similar  interests  in  any  of  the  courts  of  law  or  equity,  and  this  appears  to  be  the  rule 
which  has  prevailed  in  modern  times.'' 

Cases  of  contested  elections  in  Congress,  1834  to  1865. 

White  vs.  Harris,  page  257.— In  this  case,  ou  pages  264-5,  the  question  of  the  ad- 
missibility of  hearsay  testimony  is  discussed ;  it  was  rejected.  Report  by  Hou.  Thomas 
L.  Harris. 

Same  book,  ]>age  33.  (IngersoU  rs.  Naylor.) — Syllabus:  " Where  extensive  frauds 
were  alleged,  the  committee  refu.sed  to  receive  hearsay  evidence." 

^Oii  page  34  the  question  of  the  hearsiiy  evidence  is  discussed  and  the  evidence  re- 
jected. 

Same  book,  page  19.  (The  New  Jersey  Case.) — Si/llabus:  "Held  by  the  committee 
that  hearsay  declarations  of  the  voter  should  be  rejected." 

Ou  page  24  of  the  report  of  this  case  the  committee,  in  discussing  the  question  of 
what  vot'Cs  were  actually  cast  at  the  polls,  use  this  language: 

"The  first  proposition  involved  the  inquiry  whether  the  vote  was  actually  cast  at 
the  polls,  and  for  the  ascertainment  of  this  point  the  committee  necessarily  resorted 
to  parol  proof  as  the  best  evidence  which  the  nature  of  the  case  would  admit  of,  the 
laws  of  Xew  Jerwf  not  rcquiriug  th«  poll-lists  to  be  preserved  as  a  record  of  the  actual 
voters.  Mere  hearsay  declarations  of  the  alleged  voter  as  to  the  fact  of  his  having 
voted  have  been  uniformly  rejected." 

Cases  of  contested  elections  in  Congrefs,  1865  to  1871,  page  8i2. 

John  S.  Keid  p«.  George  W.  Julian. —.Si///a5i«;  "Hearsay  evidence  inadmissible.'^ 
(See  also  McCrary's  Law  of  Elections,  section  .300.) 
'  Hearsay  evidence  is  not  admissible  to  prove  bribery  as  a  disqualification,  but  only  to 


DONNELLY    VS.    WASHBURN.  47i^ 

affect  or  auunl  individual  votes.     { Cow  en  &  Hill's  Not«8,  704-7  ;  3McCord(S.  C.)Rei»., 
230,  note;  People  i».  Pease,  27  X.  Y.,  45,  49.) 

It  is  proper  to  observe  that  much  of  the  hearsay  evidence  relied  upon 
consists  only  of  conclusions  drawn  from  conversations  held  after  the 
election,  which  are  always  unreliable,  and  as  a  general  rule,  even  though 
the  testimony  would  otherwise  be  competent,  are  regarded  as  very  dan- 
gerous if  at  all  admissible  in  a  court  of  Justice.  Of  this  latter  class  of 
testimony  a  learned  judge  has  said  : 

No  class  of  testimony,  perhaps,  is  more  unreliable,  and  a  more  frequent  cause  of 
error  m  courts  of  justice,  than  the  narration  of  conversations,  real  or  pretended.  The 
meaning  and  intention  of  a  person  in  a  conversation  often  depend  much  upon  gesture, 
attitude,  mode  of  expression,  or  peculiar  attending  circumstances,  known,  perhaps,  to 
hut  few  i)resent.  A  conversation  may  not  be  fully  heard  by  the  witness,  imperfectly 
recollected,  or  inaccurately  repeated,  when  the  omission  or  addition  of  a  single  word, 
oi"  the  substitution  of  the  language  of  thrt  witness,  under  color  of  V»ias  or  excitement, 
for  the  words  actually  used,  might  change  the  sense  of  an  entire  conversation.  This 
is  apparent  from  the  irreconcilable  eon trmlict ions  daily  manifested  in  the  narration  of 
the  same  e<)n  versations  from  the  mouths  of  difterent  witnesses.  The  liability  to  error, 
in  this  kind  of  testimony,  would  be  greatly  increased  by  allowing  witnesses  to  a<ld 
their  own  conclusions,  or  unAersiandingn,  from  the  conversation  related,  or  their  infer- 
ences as  to  the  understanding  of  the  parties  to  the  conversation.  Such  latitude  would 
break  down  an  important  baixier  which  protects  judicial  investigation  from  error  and 
falsehood.  The  understanding  or  inferences  of  witnesses  are  very  frequentlj-  formed 
from  bias,  inclination,  or  interest.  And  a  witness's  understanding  or  inference  from 
a  conversation  or  transaction  rests  entirely  in  his  own  mind,  and  his  consciousness  of 
falsehood  would  be  incapable  of  proof;  so  that  there  coubl  be  no  possibilit^v  of  con- 
victing a  witness  of  perjurv  on  the  ground  of  such  evidence.  (Judge  Hartley,  3d 
Ohio  St.,  p.  412.) 

It  may  be  further  noted  that  the  charge  of  bribery,  like  that  of  fraud, 
must  be  proved  and  not  presumed.  This  is  a  universal  rule  of  law 
when  it  is  sought  to  convict  a  party  of  a  crime.  There  is  a  difference 
of  opinion  among  members  of  the  committee  as  to  what  rule  should  pre- 
vail in  a  contested-election  casein  proving  the  crime  of  bribery.  Some 
members  of  the  committee  maintain  that  it  should  be  proved,  as  in 
criminal  cases,  ^^  beyond  a  reasonable  douht.^^  Others  are  satisfied  with 
t^ie  rule  which  requires  the  testimonj"  to  be  "  clear,  satwfactory,  and  con- 
vincing,^^ but  all  should  agree  that  so  serious  an  offense  as  bribery  should 
be  i)roved  and  not  presumed. 

THE   CHARGE   OF  BRIBERY. 

Before  going  into  the  testimony  and  considering  it  in  the  light  of  proi>er 
rules  of  evidence,  it  should  be  said  that  there  is  evidence  tending  to  show 
that  in  this  district  the  friends  of  the  contestant  and  contestee  both  used 
money  to  poll  the  district  (pp.  8G-7  and  255),  and  to  provide  means  for 
getting  to  the  i)olls  voters  who  were  remote  from  the  polling  plaees,  and 
who  were  often  without  conveyances  of  their  own  in  which  to  travel  to 
the  polls  on  election  day.  Money  was  undoubtedly  spent  to  i)ay  can- 
vassers before  the  election,  and  in  some  instances  men  were  employed 
at  the  polls  to  hold  tickets  for  the  respective  parties.  The  district  is  a 
very  large  one  in  ])oint  of  ])opulation  and  in  extent  of  territory,  and  in 
conseijttence  of  this,  greater  effort  was  required  to  get  out  a  full  vote. 
Some  money  was  also  expended  to  pay  speakers  to  go  over  the  district. 
The  committee  is  not  prepared  to  say  that  such  use  of  money  is  entirely 
illegitimate  It  is  very  common,  if  not  universal,  in  all  contested  elec- 
tions throughout  the  United  States  for  candidates  and  their  friends  to 
use  such  means  to  secure  votes.  Presidential  elections  are  not  excep- 
tions in  this  respect. 

,  Certain  members  of  the  committee  rely  very  much  upon  the  fact  that 


474  DIGEST    OF    ELECTION    CASES. 

the  sitting  member  was  not  willing  to  dignify  the  case  of  the  contestant 
by  calling  witnesses  to  disprove  the  alleged  testimony  offered  by  him.  It 
is  a  sufficient  answer  to  this  to  say  that  tliere  is  very  little  in  any  of  the 
testimony  offered  by  the  contestant  for  the  purpose  of  proving  bribery 
that  is  in  any  sense  worthy  of  being  met  by  any  testimony,  even  though 
it  could  be  regarded  as  competent  testimony.  A  reading  of  the  testimony 
of  the  several  witnesses  will  show  in  most,  if  not  all,  the  cases  that  it 
proves  nothing  ihat  is  worthy  of  answer.  The  witnesses  called  in  many 
instances  only  make  clear  the  fact  that  they  were  disappointed  parties 
who  desired  to  be  bribed  by  being  paid  large  sums  of  money,  which 
they  were  disappointed  in  obtaining.  The  first  witness  mentioned 
in  the  report  of  the  committee,  a  Democrat,  by  the  name  of  Charles 
Berehs,  of  Morris  on  County,  is  an  examjile  of  this.  He  testifies  that  he 
wrote  a  letter  to  Mr.  Washburn  requesting  to  be  paid  fifty  dollars  to 
support  him.  It  is  not  clear  that  this  letter  was  ever  received  by  Mr. 
Washburn  in  person.  Mr.  Berens  received  no  answer  from  Mr.  Wa^sh- 
hurn  to  this  letter,  and  he  received  no  money  from  Mr.  Washburn.  Some 
of  the  committee,  however,  lay  much  stress  on  the  fact  that  Mr.  Wash- 
burn, or  some  of  his  friends,  did  not,  prior  to  the  election,  indignantly 
resent  the  proposition  made  to  him  by  Berens  as  an  insult.  There  was 
no  good  reason  why  Mr.  Washburn,  or  any  of  his  friends,  should  have 
done  so.  They  were  undoubtedly  anxious  not  to  make  any  enemies, 
even  thojigh  they  were  wholly  unwilling  to  pay  a  man  for  his  support. 
It  will  be  noticed  that  Mr.  Berens  did  not  propose  to  sell  his  vote  to  Mr. 
"Washburn,  but  simply,  as  appears  by  the  whole  testimony  of  this  wit- 
ness, to  work  for  Mr.  Washburn,  presumably  to  get  out  voters,  or  to 
induce,  by  argument  or  otherwise,  other  i)ersons  to  vote  for  him  (p. 
300).  It  appears  from  the  testimony  of  this  witness  that  he  wrote  also 
to  Mr.  Donnelly,  to  solict  him  for  money  as  an  inducement  to  support 
him  at  that  election  (p.  301).  This  witness  says  that  had  he  received 
the  fifty  dollars  which  he  solicited,  he  would  not  have  supported  Mr. 
Washburn;  and  in  the  conclusion  of  his  testimony  he  utterly  disproves 
the  charge,  so  far  as  his  knowledge  goes,  that  any  money  was  used  by 
Mr.  Washburn  or  his  agents  to  influence  persons  to  vote  for  Mr.  Wash- 
burn at  the  election.  As  Berens  opened  negotiations  with  Donnelly 
and  supported  him  (p.  301),  the  only  presumption  that  can  arise,  if  any, 
is  that  he  bribed  him.  This  witness  refers  to  a  Mr.  Brower,  who,  it  is 
-claimed,  acted  for  Mr.  Washburn  in  the  vicinity  of  where  he  lived.  But 
it  turns  out  that,  notwithstanding  his  vigilance  in  trying  to  find  that 
somebody  had  been  bribed,  he  utterly  failed.  The  following  questions 
to  this  witness,  and  the  answers  thereto,  set  at  rest  this  witness's  testi- 
mony, so  far  as  bribery  is  concerned  (Record,  p.  301): 

Q.  Do  you  know  of  Brower's  paying  any  money  to  any  person  for  his  vote  for  member 
of  Congress  or  for  any  other  candidate  to  be  vot«d  for  at  the  last  electon,  held  No- 
vember 5,  1878,  or  dnring  the  canvass  immediately  prior  therto? — A.  I  did  not  see 
him  give  any. 

Q.  Do  you  know  of  any  money  being  paid  or  promised  by  William  D.  Washburn  or 
his  agents,  or  by  any  person  or  persons  acting  for  him  with  his  knowledge,  to  any 
person  or  persons  dnring  the  last  election,  held  November  5,  1878,  or  dnring  the  can- 
vass immediately  preceding  said  election,  for  such  person  or  persons'  vote  or  vot«s  or 
influence  for  William  D.  Washburn  for  member  of  Congress  for  the  third  Congressional 
district  of  Minnesota  ? — Noi  that  I  know  of. 

Q.  Do  yon  know  of  any  person  in  this  vicinity  trying  to  corrupt  a  candidate  for 
Oongress  by  demanding  of  such  candidate  $50  as  a  consideration  for  his  supporting 
such  candidate  at  said  election  f — A.  I  did  it  myself. 

There  is  an  attempt  to  show  that  in  the  county  of  Kittson  certain 
persons  were  bribed  to  vote  for  Mr.  Washburn.  If  this  were  true,  there 
is'no  evidence  even  tending  to  show  that  he  was  in  any  sense  a  party  to 


DONNELLY    VS.    WASHBURN.  475 

it.  Tbe  committee  seem  to  think  that  the  number  of  votes  cast  in  this 
county  was  too  yreat.  The  total  vote  of  the  connty  was  184.  It  is  true 
that  two  witnesses  testify  on  this  jwint.  The  tirst,  G.  C.  Morton,  says 
(p.  125),  "to  the  best  of  my  knowle«l<j:e  there  were  four  actual  settlers  in 
this  county";  and  then  he  adds,  "that  is  all  I  know."  The  second, 
Dennis  Reardon,  says  (p.  144),  to  use  his  own  language,  referring  to  this 
same  county,  "it  was  unsettled,  so  far  as  I  saw,  except  the  railroad." 
On  this  testimony  it  is  [•ro])osed  to  tiud  that  a  large  number  of  persons 
voted  who  were  m)t  legal  voters,  and  also  that  they  were  bribed.  The 
committee  fails  to  take  into  account  that  in  new  countries  it  is  along  the 
railroad  chiefly  that  men  settle,  and  that  settlements  spring  up  as  rap- 
idly as  railroads  are  built.  The  testimony  of  Reardon  shows  that  there 
were  people  settled  along  the  railroad,  and  it  is  this  class  of  men  who 
are  denominated  as  '■'•  hnrrent  hands  and  tramps,  who  had  not  been  in  the 
i^tate  long  enough  to  vote.'^  The  witness  Morton,  so  much  relied  upon, 
says  in  his  testimony  that  he  had  only  resided  in  Kittson  County  eleven 
days  before  the  election,  and,  of  course,  he  could  have  had  verj  little 
means  of  knowing  who  were  residents  and  who  were  not;  and  on  a 
cross-examination  it  is  made  to  appear  that  he  did  not  know  a  single 
man  who  was  not  a  resident  of  the  county  at  the  election  on  November 
5,  1878.  The  following  is  an  extract  from  the  testimony  of  this  witness 
(Record,  p.  128):       • 

Q.  How  long  bad  you  beeu  ia  Tamarack,  iu  KittsoD  County,  prior  to  November  5, 
1878? — A.  I  bad  been  tjiere  eleven  days  before  election  day. 

Q.  Witb  bow  many  oT  tbe  eigbty  or  ninety  men  in  the  employ  of  Webster  &  White 
-at  their  wood-camp  at  or  near  Tamarack  were  you  personally  acquainted  on  the  5th 
♦lay  of  NoveniluT,  1878? — A.  About  forty  of  them. 

Q,  Do  you  know  of  your  own  knowledge  any  of  the  eighty  or  ninety  men  so  em- 
ployed at  the  wood-camp  of  Webster  &  White,  at  or  near  Tamarack,  who  bad  not 
resided  in  the  State  of  Minnesota  more  than  four  months  and  in  the  election  precinct 
more  tban  ten  days  prior  to  November  .5,  1878?  If  so,  state  who. — A.  I  do  know,  of 
my  own  knowledge,  of  men  that  were  tbere  less  than  ten  days  prior  to  November  .S, 
1878.  I  do  not  know  of  any  person  who  had  not  been  a  resident  of  the  State  more 
tban  four  months  prior  to  November  5,  1878.  I  cannot  name  all  the  names;  Mr.  O'Neil, 
ibrone,  Guss  Avenger,  James  Nichols,  John  Morrison,  GussGlyndon;  ten  otbers,  whose 
names  I  can't  recall  now.  Those  names  that  I  mentioned  and  ten  others  I  cannot 
<"all  to  mind  are  those  who  had  not  l»eeu  there  ten  days. 

Q.  Do  you  know,  of  your  own  knowledge,  whether  any  of  the  persons  referred  to 
in  the  preceding  answer  as  pcrson»  wbo  bad  been  tbere  less  than  ten  days  voted  at 
the  election  pi-ecinct  at  Tamarack.  November  5,  1878  ;  and,  if  so,  whether  any  of  that 
number  voted  for  William  D.  Washburn  for  member  of  Congress? — A.  I  don't  know. 

Q.  Do  you  know,  of  your  own  kuowle«lge,  wbetber  any  or  the  persons  on  the  con- 
struction train  referred  to  in  your  direct  examination  as  voting  at  the  election  pre- 
cinct at  Tamarack  on  November  5,  1878,  had  not  resided  in  the  State  of  Minnesota 
more  than  four  mouths  prior  to  said  election,  and  reside*!  in  that  precinct  more  than 
ten  days  prior  thereto? — A.  I  do  not  know. 

The  worst  that  can  be  said  in  relation  to  the  vote  of  Tamarack  pre- 
cinct, in  Kittson  County,  is  that  the  persons  who  employed  some  of  the 
voters  allowed  them  for  their  time  while  going  to  and  returning  from 
the  polls.     This  act  on  their  part  the  committee  does  not  api)rove. 

It  is  claimed  that  men  were  bribed  to  vote  for  Mr.  Washburn  at  this 
precinct.  The  testimony  does  not  sustain  this  claim.  One  G.  C.  Mor- 
ton is  relied  on  alone  to  prove  this  charge.  Aside  from  some  conclusions 
stated  by  this  witness  and  given  without  any  reliable  data  to  base  theiii 
on,  his  statements  are  purely  hearsay  and  wholly  incompetent  as  evi- 
dence. 

There  is  some  evidence  to  the  effect  that  certain  men  were  engaged 
in  chopping  wood  for  two  men — Webster  and  White — by  whom  they 
were  paid  for  their  time  while  attending  the  election,  but  the  evidence 
does  not  even  tend  to  show  any  bribery  on  the  part  of  Mr.  Washburn. 


476  DIGEST    OF    ELECTION    CASES. 

The  evideDce  shows  these  men  were  not  even  solicited  to  vote  for  Mr. 
Washburn,  but  were  allowed  to  vote  as  they  pleased.  Some  of  these 
men  may  not  have  been  legal  voters  in  Tamarack  precinct.  There  i» 
great  doubt  whether,  under  all  the  circumstances,  the  vote  of  this  pre- 
cinct should  all  be  counted.  There  was  no  proper  ballot  box,  &c.  (p.  309. 
On  the  question  as  to  whether  these  wood  choppers  were  bribed  we  give 
here  the  hearsay  testimony  of  the  witness  Morton  to  show  both  its  in- 
competency and  unreliability  (pp.  12G-7)  : 

Q.  Did  you  have  any  conversation  since  election  with  Mr.  Webster  in  reference  to 
any  payment  of  money  for  the  votes  of  the  men  employed  in  the  wood-camji  ?  And,  if 
80,  state  what  it  was. — A.  I  have  had  several  conversations  with  Mr.  Webster  since 
election  ;  he  has  mentioned  several  times  to  me  the  iact  that  Mr.  White  had  received 
the  money  for  the  pnrpose  of  defraying  the  exjieuses  of  the  election,  and  that  Mr. 
White  had  not  paid  him  his  yhare  of  it.  He  asked  me  if  I  thone^ht  he  could  sue  White 
and  collect  the  balance  duo  him  as  his  half  of  the  prceeds.  He  stated  that  Mr.  White 
had  received  for  the  firm  Webster  &  W'hite  one  hundred  and  eighty-two  dollars,  and 
that  Mr.  White  had  nor  paid  him  but  sixty-three  dollars,  which  he  claimed  wa.>*  not 
all  that  was  due  him.  Restated  that  Major  Hale,  of  this  city,  Minneapolis,  had  givea 
Mr.  White  a  check  for  one  hundre  dand  egihty  two  dollars,  and  that  the  check  was 
cashed  by  George  Webster,  paymaster  of  the  Minneapolis  and  Saint  Louis  Railroad 
Company.     It  is  about  the  substance  of  it. 

Q.  Was  this  Major  Hale  Maj.  W.  D.  Hale,  who  is  the  general  manager  of  Mr.  W. 
D.  Washburn's  business  in  this  city  ? — A.  Major  Hale  is  the  manager  of  Mr.  Wash- 
burn's business  in  Minueapolis.     I  do  not  know  his  initials. 

Q.  Did  you  understand  from  Mr.  Webster  that  the  check  for  one  hundred  and  eighty- 
two  dollars  referred  to  by  you  was  paid  to  Webster  &  White  by  Major  Hale  to  reim- 
burse them  for  the  money  paid  by  them  to  their  workingmeu  who  voted  at  that  place 
on  the  5th  of  November,  1878,  for  their  time  on  election  day  nnring  which  they  did 
not  workT — A.  Mr.  Webster  told  me  that  this  money  was  to  defray  their  expenses  at 
the  time  of  the  election  at  the  Tamarack. 

Q.  l>id  he  say  what  those  expenses  consisted  of? — A.   He  did  not. 

Q.  Do  yon  know  what  those  expenses  consisted  of? — A.  I  do  not ;  only  by  hearsay. 

Q.  State  what  you  heard  in  regard  to  those  expenses. — A.  I  have  heard  from  sev- 
eral men  that  worked  there  that  the  money  was  received  to  pay  for  the  men's  time  on 
election  day. 

Q.  Did  you  learn  from  any  of  the  men  at  the  camp  who  were  paid  for  their  time  in 
what  way  payment  was  made  to  them  ? — A.  The  men  who  worked  by  the  flay  or  mouth 
were  allowed  their  regular  time  as  if  they  had  worked  steadily ;  and  the  choppers  whO' 
worked  by  the  cord  were  allowed  one  or  two  days'  board ;  they  have  stated  it  in  dif- 
ferent ways. 

Q.  Did  you  get  this  information  from  the  men  who  were  so  paid  or  allowed  board  ? — 
A.  I  did. 

The  evidence  of  both  Webster  and  White  utterly  refutes  and  explodes 
all  the  statements  of  the  witness  Morton  as  to  bribery,  and  it  shows  also 
that  so  far  as  money  was  paid  at  all  to  these  men  for  their  time  while 
voting,  it  was  tlone  without  the  knowledge  of  the  sitting  member.  It 
also  shows  that  the  men  were  not  even  asked  to  vote  for  Washburn. 

The  contestant  put  both  Webster  and  White  on  the  witness  stand  and 
then  proceeded  at  once  to  cross  examine  them. 

We  first  give  a  full  extract  from  Webster's  testimony  (pp.  296-8) : 

Q.  Were  you  a  member  of  the  firm  of  Webster  &  White,  wood  contractors,  getting 
out  wood  last  fall  at  Taimarack,  Tipton  County,  Minnesota? — A.  I  wa,s. 

Q.  Did  you  state  in  a  restaurant  in  Minneapolis,  within  the  last  thirty  days,  that 
White  had  received  money  to  reimburse  the  firm  for  the  money  paid  to  their  employes 
for  the  time  spent  in  voting  at  Tamarack  November  5,  1876,  or  words  to  that  effect? — 
A.  No,  sir. 

Q.  Did  you  say  that  you  and  White  had  a  dispnte  or  misunderstanding  about  any 
money  so  paid  to  White? — A.  Mr.  White  and  I  have  had  no  dispute.     I  did  not  say  so. 

Q.  Did  yon  state  at  that  time  that  you  had  called  upon  Mr.  Washburn  in  reference 
to  money  coming  to  you  from  Whit«  ? — A.  No,  sir;  I  did  not  know  there  was  any 
money  coming. 

Q.  Did  you  not  say  that  yon  had  made  an  examination  at  a  bank  in  Minneapolis, 
and  that  you  found  there  a  check  given  to  White  or  some  other  party  for  a  sum  of 
money  in  payment  of  the  money  so  paid  to  men  ? — A.  No,  sir  ;  not  to  my  knowledge. 

Q.  Could  you  have  said  it  without  yonr  knowledge  ? — A.  No,  sir. 


DONNELLY    VS.    WASHBURN.  477 

Q.  Did  you  not  say  the  check  was  for  $250  aud  signed  by  William  D.  Washburn f — 
A.  No.  sir. 

Q.  Did  you  not  say,  at  that  time  aud  place,  that  you  had  called  upon  Washburn  in 
reference  to  the  money  so  paid  White,  aud  that  you  claimed  your  share  of  it,  and  did 
W'ashburn  tell  you  that  he  would  rather  pay  many  times  the  amount  of  it  than  have 
the  transaction  exposed,  and  that  he  would  or  did  make  it  riofht  with  you,  or  words  to 
that  effect? — A.  No,  sir;  I  am  not  acquainted  with  Washburn. 

Q.  Did  you  have  such  a  conversation  with  any  one  elseT — A.  Not  to  my  knowledge. 

Q.  Do  you  swear  that  you  did  not  f — A.  Yes,  sir. 

Q.  Is  iir.  Webster,  the  paymast*  r  of  the  Minneapolis  and  Saint  Louis  Railroad  Com- 
pany, a  relative  of  yours f — A.  Second  cousin. 

Q.  Did  your  tirm  pay  the  men  who  cut  wood  for  jou  at  Tamarack  a  hundred  and 
8i"xty  or  a  hundred  and  seveuty  dollars  or  any  other  sum  for  the  time  spent  at  the  pulls 
on  election  day,  November  ,5, 1878? — A.  We  simply  allowed  them  their  time  togo  androte; 
I  was  not  cashier;  that  is  all  of  my  answer. 

Q.  Do  you  j»retend  to  say  that  your  firm  did  not  pay  $160  or  ?170  to  the  men  for  their 
time  at  the  election,  and  yon  not  know  of  it  because  you  were  not  cashier?- A.  Cer- 
tainly, if  you  ask  a  man  to  vote,  ami  he  says  he  won't  vote  unless  he  is  allowed  for 
his  time,  we  have  a  riglit  to  pay  him  for  it.  /  agne  to  pay  them,  if  they  would  go  and 
vote  according  to  their  oicn  tante^for  their  time.    I  don't  care  how  anybody  votes. 

Q.  Are  you  so  fond  of  seeing  men  vote  that  you  are  willing  to  pay  §160  or  $170  for 
the  mere  luxury  of  knowing  that  they  vote,  without  regard  for  whom  they  vote? — 
A.  Mr.  White  told  me  it  was  simply  allowing  them  their  time  for  that  day,  and  that 
he  (White)  could  get  enough  money  to  balance  the  money  expended  for  the  time  they 
lost  in  going  to  the  election,  as  they  did  not  want  to  go  unless  they  got  as  much  as 
they  could  in  chopping  wood. 

Q.  Who  did  Whire  tell  yon  he  was  to  get  the  money  from  to  balance  the  money  so 
expended? — A.  He  did  not  tell  nie,  nor  I  did  not  ask  him. 

Q.  Did  he  ever  tell  you  that  he  had  got  the  money? — A.  No,  sir;  I  did  not  know 
what  he  did  receive.  I  do  not  know  what  he  received,  only  what  I  saw  in  the  paper 
and  his  testimony. 

Q.  Do  you  pretend  to  say  that  $160  or  $170  or  any  other  large  sum  could  have  been 
taken  out  of  the  money  of  the  tirm  to  pay  voters  and  you  not  know  three  months  after 
the  transaction  whether  the  firm  had  been  repaid  or  not* — A.  I  presume  it  could  as 
long  as  he  paid  the  bills.  Mr.  White  aud  I  have  notsettled  yet  on  our  wood  contract. 
We  have  been  very  busy  aiul  have  not  had  time  to  settle  our  wood  contract. 

Q.  Have  you  had  any  conversation  with  any  one  at  any  time  with  reference  to  the 
repayment  of  the  money  so  paid  by  the  tirm  to  the  wood-choppers  for  their  time  on 
election  day  ? — A.  I  hacl  all  I  could  do  election  day  to  attend  to  ray  business  as  judge 
of  election,  and  did  it  to  the  best  of  my  ability  for  botli  parties.     Not  that  I  know  of. 

Cross-examined : 

Q.  Did  you  pay  anything  for  votes  on  the  election  day  at  Tamarack,  November  5, 

1678,  or  did  Webster  &  White  pay  anything  for  votes  on  said  day  at  said  place,  or 

■  did  you  simply  allow  the  men  their  time  to  go  to  the  polls  and  vote  for  either  Mr. 

Donnelly  or  Mr.  Washburn  for  member  of  Congress  as  they  saw  fit  ? — A.  We  simply 

allowed  them  their  time  to  go  to  the  polls  and  use  th^ir  oxen  judgment  in  voting. 

Q.  Did  you  try  to  influeuce  the  men  in  your  employ  at  Tamarack  to  vote  for  William 
D.  Washburn  for  member  of  Congress  at  said  election  held  at  Tamarack  November  5, 
1878?— A.  No,  sir. 

Q.  Did  you  ask  one  Morton,  then  in  your  employ,  to  use  his  influeuce  with  the  men 
for  Washburn  ? — A.  No,  sir ;  not  to  my  knowledge. 

Q.  Do  you  know  of  any  money  being  paid  or  promised  by  William  D.  Washburn, 
or  his  agents  or  any  ])ersou  or  persons  acting  for  him,  with  his  knowledge,  to  any 
person  or  persons  for  his  or  their  vote  or  votes  or  influence  for  William  D.  Washburn 
for  member  of  Congress  from  the  third  Congressional  district  of  Minnesota,  at  or  prior 
to  the  election  held  November  5,  1878? — A.  No,  sir;  not  to  my  knowledge. 

Redirect  examination : 

Q.  Who  were  you  in  favor  of  for  Congress  last  fall  ? — A.  As  I  was  always  a  Repub- 
lican, I  voted  that  way  last  fall. 

Q.  Were  not  most  of  your  wood-choppers  cutting  wood  by  the  cord  at  $1.10  per 
cord  ? — A.  Yes. 

Q.  Was  not  their  time  their  own  ? — A.  It  was;  but  I  told  them  if  they  would  go 
and  vot«  as  they  saw  fit  I  would  allow  them  their  time,  as  they  would  not  go  witli- 
out  it. 

Q.  How  conld  you  allow  them  their  time  when  their  time  was  their  own,  as  they 
were  not  hired  by  the  day  or  month  ? — A.  If  they  had  not  went  to  the  polls  they 
would  have  cut  a  cord  and  a  half  of  wood,  which  would  have  amounted  to  $1.50,  so 
we  allowed  them  the  same  ;  did  not  care  who  they  voted  for. 


478  DIGEST  OF  ELECTION  CASES. 

Q.  About  how  many  of  them  voted  ? — A.  1  judge  about  50  or  60  voted ;  there  might 
have  been  more  or  less. 

Q.  Then  you  paid  for  about  75  cords  of  wood  which  you  never  got? — A.  I  did  not- 
say  so. 

Q.  You  said  that  White  told  yon  that  he  could  get  enough  money  to  balance  the 
money  paid  for  the  men's  time  in  voting.  If  the  men  had  all  voted  for  Donnelly  would 
he  have  got  the  money  ? — A.  Yes,  sir. 

Q.  Who  would  have  paid  it  ? — A.  I  should  have  paid  it,  and  calculated  that  you, 
Donnelly,  would  have  made  it  good. 

Q.  But  as  the  votes  were  all  but  one  for  Washburn,  did  you  calculate  that  Wash- 
burn would  make  it  good  ? — A.  No,  sir :  the  other  answer  was  said  in  joke. 

Here  are  also  full  extracts  from  the  testimony  of  the  witness  White^ 
of  the  firm  of  Webster  &  White  (pages  306,  307*,  308,  309,  310) : 

Q.  Was  an  election  held  at  Tamarack  on  the  oth  of  November,  1878,  for  Congressman 
and  State  and  county  ticket! — A.  There  was  an  election  held  for  State  officers  and 
Congressmau,  but  no  county  officer,  I  think.  The  county  was  unorganized  at  that 
time. 

Q.  Did  yon  vote  at  that  election  there  ? — A.  Yes,  sir.  I  decline  to  say  for  whom  I 
voted. 

Q.  Did  any  of  the  men  in  your  employment  vote  at  that  election ;  and,  if  so,  how 
manyf — A.  Yes,  sir;  I  guess  all  the  legal  voters  voted  ;  cannot  tell  exactly  how  many. 

Q.  Did  a  majority  of  your  men  vote  there? — A.  Yes,  sir. 

Q.  Did  two-thirds  of  them  vote  ? — A.  I  should  judge,  may  be,  more  than  two-thirds 
of  them  voted. 

Q.  Were  the  men  paid  for  the  time  consumed  in  voting  ? — A.  They  were  allowed 
their  time.  Most  of  the  men  said  they  would  like  to  go  and  vote;  didn't  feel  able  to 
lose  the  time.  Most  of  theui  were  earning  good  wages.  I  told  them  to  go  and  vote 
and  I  would  allow  them  their  time. 

Q.  Do  you  mean  that  yon  would  allow  them  pay  for  the  time  spent  at  the  polls  the 
same  as  if  they  had  been  working  for  you  all  the  time? — A.  Do  not  know  that  I  told 
them  that;  I  told  theuf  I  would  allow  them  their  time. 

Q.  Did  you,  in  settling  with  them,  pay  them  for  the  time  they  were  absent  from 
work  on  that  .5th  day  of  November,  1878? — A.  I  didn't  settle  with  them;  I  had  a 
bookkeeper  for  that  purpose. 

Q.  Was  anything  deducted  from  the  pay  of  the  men  who  worked  by  the  day  or  the 
month  on  account  of  absence  at  the  election  that  day  ? — A.  No,  sir. 

Q.  In  settling  with  the  men  who  cut  wood  by  the  cord,  was  not  an  allowance  made 
on  their  bill  for  board  of  the  time  spent  at  election  that  day  ? — A.  I  do  not  know. 

Q.  Were  you  present  when  any  of  the  men  were  settled  with  ? — A.  Yes,  sir. 

C^.  Do  you  not  then  know  that  the  wood-choppers  who  chopjied  by  the  cord  were 
allowed  one  or  two  days'  board  for  the  time  spent  at  the  election? — A.  No,  sir. 

Q.  Do  you  swear  that  such  an  allowance  or  some  other  allowance  was  not  made  to 
those  men  ? — A.  I  said  before  they  were  allowed  their  time.  Most  of  them  were  work- 
ing by  the  cord,  a  few  by  the  month — a  very  few. 

Q.  If  each  man  was  to  receive  so  ranch  for  each  cord  of  wood  cut,  whether  he  cut 
ten  cords  or  one  hundred,  was  not  his  time  his  own,  and  what  do  you  mean  when  you 
say  you  allowed  him  his  time  ? — A.  I  mean  they  said  they  wanted  to  go  and  vote, 
but  they  could  not  lose  the  time;  that  in  all  probability,  during  the  time  spent  in 
going  to,  staying  at  the  polls,  and  returning,  they  might  have  cut  a  cord  and  a  half  or 
two  cords  of  wood. 

Q.  How  much  were  you  paying  them  for  cutting  wood  by  the  cord? — A.  One  dollar 
and  ten  cents  per  cord. 

Q.  Then  you  j)aid  these  men  for  a  cord,  a  cord  and  a  half,  or  two  cords  that  they 
never  cut  for  you  ? — A.  Don't  know  as  we  allowed  them  any  such  thing  as  that ;  I 
think  we  allowed  them  about  what  they  could  have  cut  in  a  day. 

Q.  What  was  the  gross  sum  that  vou  paid  or  allowed  in  this  way  ? — A.  I  don't 
know  ;  I  think  $160  or  $170. 

Q.  Has  that  money  been  repaid  to  you  ? — A.  Yes,  sir. 

Q.  Who  by? — A.  I3y  a  man  named  George  B.  Webster,  who  gave  me  a  check  on  the 
bank ;  think  it  was  the  First  National,  of  Minneapolis. 

Q.  What  was  the  amount  of  that  check?— A.  It  was  either  $168  or  $172. 

Q.  Who  is  this  Mr.  Webster  ? — A.  The  paymaster  of  the  Minneapolis  and  Saiut  Louis 
Railroad. 

Q.  Who  is  the  president  of  that  road  ? — A.  W.  D.  Washburn. 

Q.  How  did  the  paymaster  of  the  Minneapolis  and  Saint  Louis  road  happen  to  pay 
you  for  wood  cut.  or  the  time  of  your  employes,  under  a  contract  for  the  Saint  Paul 
and  Pacific  Road  ? — A.  Well,  I  will  tell;  he  was  a  friend  of  mine,  and  I  weut  to  him, 
asked  him  if  he  could  let  me  have  $168  or  $172.  or  loan  me  that  amount.     He  took  out 


DONNELLY    VS.    WASHBURN.  473^ 

his  little  bank-book,  said  be  bad  just  about  that  amount  in  the  bank,  and,  if  it  would 
accouimodate  me,  he  would  let  me  have  it.     /(  uas  his  iiiditidual  check. 

Q.  Have  you  ever  repaid  him  that  auionut  ? — A.  No,  sir. 

Q.  Did  yon  give  him  your  promissory  note  for  that  amount  at  the  time  he  gave  yoit 
the  check? — A.  No,  sir. 

Q.  Whose  name  was  to  the  check  you  received  for  that  money  t — A.  George  B.  orG. 
B.  Webster  ;  can't  tell  exactly  when  it  was  given.  Quite  confident  it  was  after  elec- 
tion ;  might  have  been  eight  or  ten  days  aftrr  election. 

Cross-examined  by  F.  Hooker,  Esq.,  on  behalf  of  contestee  : 

Q.  iVas  then  anything  said  to  the  men  by  yourself  at  the  camp  that  tended  in  any  way  to- 
unduly  influence  those  mni  to  oast  their  rotes  for  lither  Tf.  D.  Washburn  or  Ignatius  Don- 
nelly for  member  of  Congress  at  the  election  held  at  Tamarack,  November  b,  1878  f — A.  No, 
lir :  some  of  the  men  said  they  would  like  to  go  and  vote.  Some  of  the  men  asked  me 
if  I  bad  any  choice  :  I  said  I  was  friendly  to  Mr.  Washburn  :  that  they  cojild  vote  for 
either  Mr.  Donnelly  or  Mr.  Washburn  as  they  saw  fit.  This  was  in  substance  all  I 
said  to  the  men  about  voting  for  either  Mr.  Washburn  or  Mr.  Donnelly.  When  they 
came  to  count  the  votes  I  was  much  surprised  to  find  that  Mr.  Donnelly  had  no  more 
votes.  I  did  not  know  whi^'h  way  the  rote  would  go.  I  did  not  know  but  Mr.  Donnelly 
would  get  40  or  50  or  60  votes.  Didn't  ask  any  one  how  they  would  vote.  I  suppose  there 
was  an  opportunity  for  all  to  get  tickets.  There  were  several  settlers  in  that  vicinity. 
Everything  was  quiet  and  orderly  at  the  polls.  The  polls  were  open  at  exactly  nine 
and  closed  at  five.  No  person  voted  at  that  precinct  who  was  not  known  to  the  judges- 
to  be  residents  of  the  precinct.  In  Morton's  testimony  he  mentioned  the  names  of 
Nichols  and  Morrison  as  illegal  voters  or  from  Canada.  I  know  they  did  not  vote. 
They  said  to  me  that  they  thought  they  had  no  right  to  vote,  and  I  told  them  not  to 
vote  if  they  thought  they  were  not  legal  voters. 

Q.  How  long  had  you  known  General  Washburn  ? — A.  Seven  or  eight  months ;  was- 
ordinarily  friendly  to  him.     He  always  treats  me  respectfully,  and  I  also  treat  him  so. 

Q.  Did  you  go  to  Morton  to  get  him  to  use  his  influence  with  the  men  to  vote  for 
Mr.  Washburn  for  Congress  at  said  election t — A.  No,  sir;  I  did  not.  I  was  on  no 
more  intimate  terms  with  Morton  than  I  was  with  the  other  men. 

Q.  Do  you  know  of  your  own  knowledge  of  any  money  paid  or  promised  to  be  paid, 
reward  ofiered  or  promised,  or  any  valuable  consideration  whatever  given  or  promised 
by  Wm.  D.  Washburn,  or  any  person  or  persons  acting  for  him  with  his  knowledge,  to 
any  person  or  persons  in  order  to  influence  such  person  or  persons  to  vote  for  or  use 
his  or  their  influence  to  cause  other  persons  to  vote  lorWm.  D.  Washburn  at  the  late 
election  held  November  5,  1878? — A.  No,  sir. 

Recross-examination : 
Q.  Did  you  say  auythiitg  to  Morton  about  this  money  transaction  that  has  been 
talked  about  ? — A.  Never,  to  the  best  of  my  memory. 

Redirect: 
Q.  Did  Webster  tell  Morton  in  your  presence  that  Webster  &  White  would  make- 
more  money  looking  after  the  election  than  they  would  at  cutting  wood,  or  words  to 
that  eflFeet  ? — A.  I  think  not,  sir:  I  don't  know  what  he  told  Morton,  but  he  did  not 
say  it  in  my  presence.     I  never  told  Morton  any  such  thing. 

The  testimony  does  not  show  that  Webster  &  White  paid  these 
\rood-choppers  for  their  time  under  any  arrangement  with  Washburn  or 
any  of  his  friends.  The  most  that  can  be  said  is  that  one  George  B, 
Webster,  a  i-elative  of  the  Webster  of  the  firm  of  Webster  &  White 
(p.  296),  consented  after  the  election  to  reimburse  Websterfor  the  money 
he  had  paid  these  men  for  their  time  on  election  day  while  attending 
the  polls  and  voting. 

He  only  adopted  the  act  after  the  election  by  giving  his  individual  check 
for  the  sum  paid  (page  307).  If  Mr.  Washburn  had  himself  done  thi» 
(which  he  did  not),  he  would  not,  have  been  guilty  of  bribery,  eveu 
though  it  could  be  said  the  men  were  bribed  to  vote  for  him. 

The  testimony  does  not  show,  as  has  been  claimed,  that  money  wa» 
paid  from  the  funds  of  the  Minneapolis  and  Saint  Louis  Railroad  Com- 
pany ;  nor  does  it  show  who,  if  any  person,  reimbursed  George  B.  Web- 
ster. The  most  that  can  be  said  is  that  G.  B.  Webster  may  have  paid 
this  money  from  a  campaign  fund  raised  by  the  district  committee.  We 
are  not  called  on  to  approve  of  the  act  of  Webster  &  White  in  prom- 


480  DIGEST    OF    ELECTION    CASES. 

ising  and  subsequently  paying  these  wood-choppers  for  their  time  on 
election  day  while  th«v  were  not  at  work.  The  policy  of  such  an  act  is 
strongly  condemned,  although  it  is  often  adopted.  As  in  this  case,  the 
voters  who  are  laboring  men  often  demand  to  be  paid  for  their  time 
regardless  of  their  politics. 

Some  significance  is  given  to  the  fact  that  in  Tamarack  precinct  Don- 
nelly only  received  one  vote.  It  was  not  the  only  precinct  where  the 
voters  about  all  voted  one  way.  Mr.  Donnelly  claims  to  have  received 
all  the  votes,  Gl,  cast  in  Leaf  Valley  precinct,  Douglas  County,  page 
270,  and  a  portion  of  the  committee  (although  no  return  was  made  of 
these  votes)  has  agreed  to  count  them  for  him.  For  other  precincts 
where  the  vote  was  almost  unanimously  for  Donnelly,  see  pages  2G0and 
261  of  record.  Had  the  voters  in  Tamarack  precinct  been  bribed  to  vote 
for  Washburn  that  fact  could  certainly  have  been  proved  by  comi^etent 
testimony. 

As  the  rejection  of  the  entire  vote  of  this  precinct  cannot  affect  the 
result  in  this  case,  it  is  not  thought  necessary  to  do  anything  more  than 
■consider  the  testimonj^  with  reference  to  the  contestee's  complicity  with 
any  alleged  bribery.  It  is  not  necessary  to  invoke  the  application  of 
the  rule  that  bribery  must  be  proved,  not  presumed,  to  completely  exoner- 
ate him  from  such  a  charge  in  this  as  well  as  all  other  alleged  cases. 

The  witness  Emil  Shagren  is  relied  upon  very  much  to  i)rove  bribery 
in  this  case.  It  does  appear  from  the  testimony  of  Emil  Shagren  that 
one  Mr.  Hale,  a  friend  of  Mr.  Washburn,  had  one  or  two  interviews 
with  this  witness,  during  which  he  tried  to  persuade  him  to  support 
Mr.  Washburn.  But  this  witness,  when  in  need  of  money,  received  five 
dollars  from  Mr.  Hale,  according  to  his  own  confession,  and  afterwards 
supported  Mr.  Donnelly.  This  money,  if  paid  to  him  at  all,  was  on  ac- 
count of  expenses  that  Mr.  Shagren  would  be  required  to  incur  while 
engaged  in  using  his  influence  with  his  friends  for  the  election  of  Mr. 
Washburn.  In  the  course  of  the  alleged  conversation  with  Mr.  Hale  it 
is  claimed  that  Hale  proposed  to  bribe  Mr.  Shagren  and  induce  him  to 
turn  from  his  support  of  Mr.  Donnelly  to  the  support  of  Mr.  Washburn. 
But  a  careful  reading  of  the  testimony  will  show  that  this  even  is  not 
true.  Shagren  sajs  in  his  testimony  (page  15)  that  Mr.  Hale  said  to 
him,  "  Is  it  greenbacks  you  want  ?  I  am  told  you  are  a  delegate  to  the 
Oreenback  convention,  and  that  you  are  a  Donnelly  man."  A  further 
reading  of  the  testimony  will  show  that  Mr.  Hale  could  ha^  e  referred, 
when  he  used  this  language,  to  nothing  more  than  the  politics  of  the 
■witness.  Mr.  Donnelly  was  running  as  a  Greenback  candidate.  Aside 
from  the  fact  that  Shagren  confesses  that  he  was  willing  to  be  bribed 
to  support  one  mau  while  he  treacherously  supported  another,  this  wit- 
ness is  showu  to  be  entirely  unworthy  of  credit.  He  is  directly  im- 
peached by  at  least  three  witnesses  called  by  the  contestant.  He  testi- 
fies (pages  10  and  17)  positively  that  Ole  Mahler  told  him  at  Harmonia 
Hall  khat  he  could  get  twenty-five  dollars  to  vote  for  Washburn  and  to 
use  his  influence  for  him ;  that  Sevit  Mahler  told  him  he  was  paid  to  vote 
for  Washburn ;  that  John  Oleson  told  him  he  got  two  dollars  to  vote 
for  Washburn  and  to  use  his  influence  for  him  ;  and  that  Daniel  Getchel 
had  received  money  to  vote  for  Washburn.  Ole  Mahler  was  called  by 
contestant  as  a  witness,  and  swears  (pp.  116,  119)  that  he  was  a  sup- 
porter of  Donnelly,  aud  also  that  he  never  stated  to  Emil  Shagren  that 
he  had  been  paid  money,  or  other  valuable  consideration,  for  his  vote ; 
that  he  attended  the  polls  to  look  after  the  interests  of  some  of  his 
friends,  candidates  for  county  offices,  and  that  he  did  not  ask  anybody 


DONNELLY    VS.    WASHBURN.  481 

■at  tlie  polls  to  vote  for  Washburn.    Ole  Mahler  says  in  his  testimony 
(page  119) : 

I  have  read  a  piece  iu  tbe  Pioneer  Press,  giving  the  statement  of  Mr.  Shagreu  of 
my  meeting  him  at  Harmonia  Hall  the  eleventh  day  of  November  last,  and  that  I 
told  him  that  I  had  $'i5  from  Washburn.  I  deny  every  word  of  it.  I  was  not  at  Har- 
monia Hall. 

John  C.  Olesou  directly  impeaches  Shagren  in  the  most  positive  terms. 
On  this  point  his  testimony  is  given  in  full  (page  87) : 

Q.  Do  you  know  Emil  Shagren  f — A.  Yes,  sir. 

Q.  Please  state  if  you  had  a  conversation  with  Emil  Shagreu  at  Morrison  Brothers' 
himber-yard,  or  at  any  other  place,  on  or  about  November  7  last,  and  stated  to  Sha- 
gren that  you  had  received  money  to  cast  your  vote  for  Mr.  Washburn  at  the  last  Con- 
gressional election. 

(Objected  to  as  irrelevant  and  immaterial,  and  as  not  addressed  to  any  specific 
charge  in  the  notice  of  contest. ) 

A.  I  never  had  anything  to  do  with  Mr.  Shagren  about  election  matters,  and  I  had 
no  such  conversation  with  him. 

Q.  Did  you  not  state  to  Mr.  Shagren  that  Chase  paid  you  two  dollars  to  vote  for 
Washburn  ? — A.  I  did  not. 

Q.  Now,  please  state  whether  you  were  paid  any  money  by  any  one  in  consideration, 
that  you  cast  your  vote  for  Mr.  Washburn  and  use  your  influence  in  his  behalf  at  the 
last  election. — A.  I  was  never  promised  any  money  from  any  party ;  I  was  never  paid 
any  money  by  any  one. 

Q.  Did  you  not  go  to  Mr.  Chase  after  election  and  ask  him  for  more  money,  stating 
that  you  had  not  received  as  much  as  the  rest  of  the  boys '—A.  I  did  not. 

Q.  Did  you  not  state  to  Emil  Shagren  that  you  had  demanded  more  money  of  Chase, 
and  that  Chase  had  answered  that  if  he  paid  you  anymore  that  he  would  have  to  pay 
it  out  of  his  own  pocket  ? — A.  No,  sir ;  I  never  had  any  conversation  with  Mr.  Shagren 
about  it. 

Daniel  Getchel  also  directly  impeaches  the  witness  Shagren  (pages 

86-87) : 

Q.  How  long  have  you  belonged  to  that  party  (Democratic)  f — A.  Since  the  election 
of  Mr.  Tilden. 

Q.  Do  you  know  Mr.  Emil  Shagren  ? — A.  Yes. 

Q.  Please  state  whether  at  any  time  you  stated  to  Emil  Shagren  that  you  had  re- 
ceived money  from  auy  party  or  parties  for  your  vote  at  this  last  Congressional  elec- 
tion, or  for  your  influence  or  services,  from  any  party. — A.  I  did  not  make  any  such 
statements  to  Mr.  Shagren. 

Q.  What  did  you  state  ? — A.  I  object,  and  decline  to  answer. 

Q.  Please  state  whether  you  have  received  any  money  from  any  party  at  this  last 
Congressional  election — from  any  party  for  your  vote,  or  services,  or  influence. — A.  I 
decline  to  answ<;r  that  question. 

Q.  Will  you  state  whether  you  have  received  any  money  from  W.  D.  Washburn,  or 
from  any  party  actiug  iu  his  behalf,  with  the  understanding  and  agreement  that  you 
should  cast  your  vote  for  W.  D.  Washburn  for  Congress  ? — A.  I  received  no  money 
from  Mr.  Washburn,  nor  from  any  of  his  friends,  direct  or  indirectly.  That  Mr.  Wash- 
burn, nor  any  of  his  friends,  never  approached  me  nor  came  to  me  to  ask  me  to  vote 
for  him  or  use  my  influence,  and  I  would  not  have  voted  for  him  if  he  had.  I  voted 
for  Mr.  Donnelly  and  used  all  my  influence  for  him. 

Q.  Please  state  whether  or  not  you  did  say  to  Shagren  that  you  was  paid  to  vote 
for  Washburn,  and  that  you  had  voted  for  Washburn. — A.  I  did  not  state  any  siich  a 
thing. 

Q.  Please  state  whether  you  know  of  any  other  parties  who  have  received  money 
to  vote  for  Mr.  Washburn. — A.  I  do  not  know.     I  have  no  knowledge  whatever. 
Cross-examination : 

Q.  Do  you  know  of  any  voters  receiving  any  money,  promise  of  office,  or  other 
reward  for  voting  for  Mr.  Donnelly  at  the  last  election  for  member  of  Congress? — A. 
I  have  no  knowledge  of  anything  of  the  kind,  sir. 

It  is  thus  made  to  appear  by  three  witnesses  that  Shagren  is  a  willful 
perjurer.  It  is  proper  to  observe  here  that  with  the  exception  of  the 
witnesses  Mahler,  Olesen,  and  Getchel,  whose  testimony  is  referred  to 
above,  the  contestant  has  failed  to  call  persons  who  would  know  the 
facts  in  relation  to  the  alleged  bribery,  but  he  has  generally  relied  upon 
H.  Mis.  58 31 


482  DIGEST  OF  ELECTION  CASES. 

getting  persons  who  had  their  pretended  information  second  or  third 
hand,  and  in  most  instances  were  persons  whose  testimony  was  of  a  very 
doubtful  character,  and  who  had  some  grievance. 

The  testimony  of  Bernard  Cloutier  (pages  211-213)  is  relied  upon  to 
prove  his  bribery.  It  appears  from  this  witness's  testimony  that  he  was 
in  the  market  as  a  worker  at  the  polls,  and  was  somewhat  disgusted 
because  in  the  past  he  claimed  to  have  been  promised  a  good  deal  of 
money  for  his  work,  but  had  never  got  anything  for  it.  He,  however, 
states  that  he  did  receive  from  one  Charles  W.  Johnson,  who  was  in 
some  way  connected  with  the  Republican  district  committee,  some  money 
for  his  influence  and  work.  He  says  he  was  to  go  out  in  the  country 
and  electioneer  for  Washburn  and  the  rest  of  the  Republican  ticket.  He 
also  says  he  was  induced  to  do  some  work  for  one  John  Baxter,  who* 
was  a  candidate  for  the  legislatiu'C.  He  further  says:  *'I  wanted  him 
to  give  me  money  enough  to  pay  my  expenses,  to  furnish  a  team,  and 
pay  for  my  team.  He  told  me  all  right ;  to  go  and  hunt  up  a  team,  and 
start  out  the  next  morning."  And  he  distinctly  says  that  he  told  Baxter 
that  Washburn  was  his  candidate,  and  this  before  he  was  employed  ta 
do  any  work  in  the  election  for  any  candidate.  The  following  is  an 
extract  from  his  testimony: 

Mr.  Johnson,  as  I  understood,  was  secretary  of  the  Republican  district  committee. 
I  think  I  have  given  all  of  the  conversation  between  Johnson  and  mj-self,  or  Washburn 
and  myself,  in  reference  to  my  services  in  that  campaign.  There  was  no  money  or 
other  consideration  offered  to  me  or  received  by  me  for  my  vote  for  Mr.  Washburn  or 
anybody  else.  ' 

My  choice  as  between  Mr.  Washburn  and  Mr.  Donnelly  prior  to  any  uegotiatious- 
for  my  servaces  was  for  Mr.  Washburn.  I  knew  Mr.  Washburn,  and  did  not  know 
Mr.  Donnelly.  I  was  not  authorized  or  requested  to  use  any  part  of  this  money  to 
eecure  votes  for  Mr.  Washburn  in  any  way,  except  to  pay  my  expenses  and  time.  I 
do  not  know  of  any  money  or  other  valuable  thing  being  paid,  or  any  promises  made- 
by  Mr.  Washburn  or  any  person  in  his  behalf,  to  any  voter  to  influence  his  vote  in 
his  favor  at  said  election. 

The  report  of  a  portion  of  the  committee  in  two  places  finds  by  the 
testimony  of  this  witness  alone  that  he  was  paid  $20  by  Charles  W. 
Johnson  in  Mr.  Washburn's  office,  in  his  presence.  We  are  content  to 
say  that  there  is  not  a  syllable  of  evidence  in  the  entire  record  which 
even  tends  to  prove  that  this  is  true.  On  the  contrary,  the  witness 
Cloutier,  in  express  terms,  states  (p.  212)  that  it  was  paid  to  him  by 
Johnson  in  the  absence  of  Mr.  Washburn.  There  is  nothing  in  his 
testimony  which  tends  in  any  sense  to  show  an  attempt  to  bribe  him, 
or  to  employ  him  to  bribe  others,  to  vote  for  Mr.  Washburn. 

Members  of  the  committee,  having  referred  to  the  testimony  of 
Charles  Berens,  George  C.  Morton,  Emil  Shagren,  and  Bernard  Cloutier, 
then  proceed  to  lay  down  the  proposition  that,  as  a  matter  of  law,  Mr^ 
Washburn  must  be  held  to  have  been  guilty  of  bribery  because  he  failed 
to  rebut  their  testimony,  regardless  of  the  fact  that  when  the  testimony  is 
examined  it  does  not  show  Mr.  Washburn  to  have  himself,  or  through  any 
authorized  agent,  paid  or  promised  a  single  cent  of  money  to  any  person. 
There  is  no  rule  of  law  which  requires  a  party  charged  with  an  offense, 
which  is  not  proved,  to  himself  enter  upon  a  defense;  nor  is  it  true 
that,  in  the  trial  of  a  case  where  a  crime  is  charged,  any  presumption 
arises  against  the  party  charg'ed  because  he  does  not  prove  himself  in- 
nocent, or  merely  because  he  is  charged  with  the  offense.  The  rule  of 
law  is  universal,  that  a  man  must  be  proved  to  be  guilty  by  comi)eteut 
evidence  upon  the  trial.  There  can  be  no  presumptions  against  the 
party  charged  simply  because  he  furnishes  no  evidence  on  the  trial. 
The  exigencies  of  the  contestant's  case  may  be  the  excuse  for  under- 
taking to  enunciate  any  such  anomalous  and  absurd  proposition  of 


DONNELLY   VS.    WASHBURN  483 

law.     The  astonishment  is  that  the  proposition  should  find  supporters 
in  the  committee. 

It  is  claimed  that  in  Crookston  precinct,  in  Polk  County,  there  were  a 
large  number  of  illegal  votes  cast  by  parties  that  worked  upon  the  con- 
struction of  a  railroad  who  were  not  inhabitants  of  that  precinct  and 
had  no  right  to  vote  there.  This  claim  is  chiefly  based  upon  the  alleged 
fact  that  the  vote  of  this  precinct  was  too  large.  The  whole  vote  of  the 
precinct  was  258  as  returned.  The  county  of  Polk  lies  on  the  Red  Kiver 
of  the  North,  and  extends  along  it  for  over  sixty  miles,  and  Red  Lake 
River  passes  directly  through  it  in  an  east  and  west  direction.  The  Saint 
Paul.  Minneapolis  and  Manitoba  Railroad  passes  through  its  entire 
length,  north  and  south,  over  sixty  miles.  Crookston  is  its  chief  city, 
being  at  the  crossing  of  the  railroad  with  Red  Lake  River.  Now,  it 
must  be  borne  in  mind  that  a  residence  may  be  acquired  in  a  county  in 
ten  days  for  the  purpose  of  an  election,  provided  the  voter  has  resided 
in  the  State  long  enough  to  become  a  resident  and  naturalized  citizen. 
That  county,  for  a  year  or  more  previous  to  the  fall  election  of  1878, 
swarmed  with  immigrants  and  land  hunters.  At  the  governor's  election 
in  1877  there  was  polled  in  that  county  257  votes,  of  which  238  were  for 
Pillsbury,  Republican,  and  19  for  Banning,  Democrat.  From  1877  to 
1878  there  was  an  increase  of  voters  in  that  county  much  less  than  might 
have  been  anticipated.  The  contestant  does  not  attack  any  precinct  of 
Polk  County  except  Crookston,  and  upon  this  point  he  swears  four  wit- 
nesses— Johnson  (page  190),  Sampson  (page  232),  Myer  (page  238),  and 
Church  (page  223).  It  is  impossible  to  give  a  detailed  analysis  of  the 
testimony  of  these  witnesses  in  a  report. 

Johnson's  testimony  shows  that  every  voter  of  whom  he  speaks  had 
a  clear  right  to  vote.  He  speaks  of  a  number  of  persons  as  "  Thomp- 
son's crew,"  but  he  said  that  they  had  all  been  in  the  district  two  or  three 
weeks  or  a  month  before  the  election.  Some  were  old  settlers  and  some 
had  been  there  several  years,  others  for  only  two  or  three  months.  On 
cross-examination  this  witness  shows  that  he  knows  very  little  about 
the  matter,  except  what  he  has  been  told  by  others,  chiefly  since  the 
election. 

The  witness  Sampson,  undertakes  to  give  a  census  of  Crookston,  but 
before  he  gets  throtigh  it  clearly  appears  that  he  knows  little  about  the 
total  number  of  voters  in  the  precinct.  After  this  witness  has  given  a 
census,  as  far  as  he  can,  of  the  resident  voters  of  Crookston,  he  says: 

There  are  two  or  three  shanties  in  the  village,  but  I  do  not  know  the  people.  I 
could  not  swear  but  there  might  be  a  few  more ;  could  not  be  many,  as  I  am  well  ac- 
qnaintetl  there.  If  there  are  more  I  have  not  seen  them ;  they  may  be  out  in  one  cor- 
ner, but  I  have  not  seen  the  hoiises.  I  forgot  to  state  that  Hitchcock  &  Brother  nins 
some  big  farms  on  the  northern  part  of  the  township.  I  could  not  state  whether  they 
wert*  voters  or  not. 

He  further  says: 

I  know  the  fanners,  and  I  know  the  country.    J  do  not  know  the  steamboat  men, 

the  men  who  are  coming  and  going. 

And  on  the  question  as  to  whether  any  illegal  votes  were  polled,  when 
asked  the  question,  "  Did  you  see  any  railroad  workingmen  vote  at  that 
poll  at  that  time?"  he  says:  "No;  I  was  not  up  at  the  house."  He 
does  say  that  a  minister  of  the  gospel  who  preached  in  another  town 
voted  in  Crookston.  To  show  the  utter  unreliability  of  the  witness 
Sampson,  an  extract  from  his  testimony  is  here  given.  The  only  apology 
tor  giving  this  is  found  in  the  fact  that  some  of  the  committee  lay  great 
stress  upon  this  witness's  knowledge  of  the  voters  of  Crookston  precinct, 


484  DIGEST    OF    ELECTION    CASES. 

and  rely  upon  it  to  conclusively  sbow  that  there  was  a  large  number  of 
illegal  votes  cast  at  the  election  of  1878: 

Q.  Who  came  into  this  county  iu  the  month  of  August  last  as  settlors? — A.  I  never 
stated  that  I  knew  all  the  farmers  iu  the  county :  I  know  the  most  of  them. 

Q.  Who  came  into  the  township  of  Fisher  during  the  months  of  August,  Septem- 
ber, and  October  26,  1876  ? — A.  That  is  one  thing  I  have  kept  no  record  of.  No,  I  keep 
no  record. 

Q.  Who  came  into  the  village  of  Crookston  during  the  mouths  of  August,  Septem- 
ber, and  up  to  October  26,  1878,  to  make  this  their  home  f — A.  I  have  kept  no  record; 
«ome  of  those  I  named  came  during  that  time.  I  know  that  a  .saloon-keeper  down 
at  Box's  place,  he  began  last  fall  pretty  late  ;  Kistenniacher  and  his  partner  started 
late  last  fall.  I  know  Kretzsetmar  started  some  time  in  August  some  time.  That  har- 
ness man,  he  put  his  shop  up  in  the  middle  of  the  summer :  also  Colter  builded  last 
summer. 

Q.  Do  you  swear  that  you  stated  the  names  of  all  the  male  adult  residents  of  the 
village  of  Crookston  who  resided  there  more  than  ten  days  before  November  5, 
1878  ? — A.  No,  I  do  not.     I  told  you  that  there  might  be  a  few  more. 

Q.  How  many  boarders  had  Mr.  Box  of  male  persons  over  21  years  of  age  who  had 
resided  in  the  village  of  Crookston  more  than  ten  days  prior  to  the  election,  whose 
names  yon  have  not  stated  ? — A.  I  could  not  say  that. 

Q.  May  he  not  have  had  quite  a  number  f — A.   1'  or  all  I  know  ;  I  keep  no  record. 

Q.  How  many  men  over  21  years  of  age  who  had  resided  iu  the  village  of  Crooks- 
ton more  than  ten  days  prior  to  the  election  held  November  5,  1878,  boarding  at  the 
Sherman  House,  whose  names  you  have  not  stated  ? — A.  That  is  one  thing  no  man 
could  state.     There  were  p<^ople  coming  and  going  everv  day. 

Q.  Maj'  there  not  have  been  quite  a  large  number  ?^ — ^A.  May  have  been  a  good 
many. 

Q.  Were  there  not  quite  a  number  of  private  boarding-honses  in  the  village  of 
Crookston  dnring  the  fall  of  1878,  and  at  and  prior  to  the  election  held  November  5, 
1878? — A.  There  was  some  people  stopping,  coming  and  going.  Some  regular  board- 
ers, I  should  think,  at  these  private  boarding-houses. 

Q.  Were  there  not  men  of  the  age  of  21  years  who  had  resided  in  the  village  of 
Crookston  more  than  ten  days  prior  to  the  election  held  November  5,  1878.  whose 
names  you  have  not  stated,  who  were  boarding  at  those  private  boarding-houses  at 
that  time  ? — A.  I  don't  know  if  there  were,  and  couldn't  say  if  there  was  any  people 
coming  and  going.     The  boarding-houses  were  full  sometimes. 

Q.  May  there  not  have  been  quite  a  large  number  of  such  men,  whose  names  you 
have  not  given  f — A.  I  can't  state  t)iat. 

Q.  Were  there  not  quite  a  large  number  of  single  men  in  this  locality  of  the  age  of 
21  years  who  had  resided  in  the  village  or  township  of  Crookston  more  than  ten  days 
prior  to  the  election  held  November  5,  1878  ? — A.  I  could  not  state  that.  There  may 
nave  been. 

Q.  How  many  children  are  there  in  the  public  school  in  the  village  of  Crookston  * — 

A.  What  I  have  learued  from  the  Crookston  paper  and  School  Superintendent  Steven- 
son, 120  scholars.  The  district  includes  four  towns.  I  know  there  are  children  there 
from  other  townships. 

Myei^'s  testimony  has  reference  only  to  a  conversation  with  one  W. 

B.  Moore,  whom  he  imagined  was  an  illegal  voter,  and  whom  he  stated 
told  him  he  was  not  a  naturalized  citizen.  On  this  he  founded  a  theory 
in  his  own  mind  that  fraud  had  been  committed.  This  witness  started 
on  the  mission  of  finding  out  whether  Mr.  Moore  was  a  naturalized  citi- 
zen or  not,  and  succeeded  in  finding  the  record,  which  satisfied  him  that 
he  was.  This  is  an  illustration  of  the  unreliability  of  loose  statements 
made  by  persons  after  an  election.  They  are  often  made  merely  to 
badger  and  annoy  and  excite  the  curiosity  of  some  over-officious  man, 
such  as  doubtless  Myers  and  other  of  the  witnesses  called  in  this  ca^e 
■were.  The  other  witness,  Ciiurch,  recites  some  conversations,  and  un- 
dertakes to  give  some  conclusions  about  the  number  of  legal  voters  in 
Crookston  precinct,  but  when  he  is  fully  examined  he  makes  clear  two 
things  only :  Ist.  That  he  has  no  good  data  upon  which  to  base  any  of 
his  statements;  2d.  That  he  was  a  disappointed  candidate  for  sherilf  at 
that  election,  who  tiied  very  hard  to  induce  all  these  voters,  whom  he 
now  claims  were  illegal  voters,  to  vote  for  him,  but  failed. 

Members  of  the  committee,  however,  hold  that  many  persons  who 


DONNELLY    VS.    WASHBURN.  485 

TOted  iu  Polk  County  ought  to  be  regarded  as  illegal  voters  because 
they  worked  on  a  railroad  fourteeu  miles  from  the  voting  preciuct,  and 
not  because  tbey  resided  outside  of  it :  and  for  the  further  reason  that 
the  railroad  company  for  whom  they  worked  transported  them  to  the 
polling  place  in  a  railroad  car. 

It  is  ])roper  to  observe  here,  again,  that  during  the  short  time  a  por- 
tion of  these  voters  were  going  to  and  returning  from  their  voting  place 
their  employers  paid  them  for  their  time;  and  it  may  be  observed,  also, 
that  in  some  of  the  newly  constituted  voting  places,  ballot-boxes,  such 
as  Avere  required  by  the  letter  of  the  law,  were  not  provided.  An  im- 
provised candle  box  was  used  at  one  place,  and  a  cigar  box  at  another. 
But  there  is  no  law  which  requires  the  rejection  of  the  votes  cast  in  such 
receptacles,  iu  the  absence  of  a  whisper,  or  pretense  of  proof,  that  the 
contents  of  the  boxes  were  tampered  with.  No  such  charge  is  made  by 
the  contestant,  in  his  notice,  with  reference  to  any  of  the  precinct«  in 
the  Congressional  district,  and  there  is  no  proof  to  sustain  any  such 
claim.  Experienced  persons  on  the  frontier  know  that  people  there 
have  to  put  up  with  what  they  can  get.  But  the  contestant  desires  to 
disfranchise  a  large  number  of  these  hardy  pioneers  because  of  their 
poverty  and  their  inability  to  provide  themselves  with  the  usual  and 
ordinary  facilities  tor  exercising  the  elective  franchise. 

It  is  not  proposed  only  in  a  few  instances  to  review  the  cases  where  it 
is  alleged  that  individuals  were  bribed  by  Mr.  Washburn  or  his  friends. 
We  have  sufficiently  shown  that  Mr.  Washburn,  personally,  had  noth- 
ing to  do  with  bribing  any  voter,  nor  did  he  authorize  any  person  to 
bribe  voters  for  him.  It  may  be  admitted  that  some  persons  were  em- 
plojed  by  members  of  the  Republican  party,  and  by  friends  of  Mr.  Wash- 
burn, to  work  at  the  polls  and  to  induce  the  voters  to  turn  out  on  elec- 
tion day.  Certain  members  of  the  committee  claim  that  about  22  per- 
sons were  bribed  to  vote  for  Mr.  Washburn.  The  testimony  does  not 
disclose  in  but  few  cases  who  these  22  persons  voted  for,  or  that  they 
voted  at  all. 

Oluf  Larson  is  the  first  one.  He  resided  in  the  city  of  Saint  Paul.  He 
says  iu  his  own  testimony,  in  express  terms,  that  he  did  not  receive  any 
money  or  other  valuable  consideration  for  the  purpose  of  securing  his 
vote  or  his  influence  at  the  polls  on  behalf  of  Washburn  at  that  election. 
He  does  say  that  he  was  paid  ten  dollars  to  peddle  tickets  for  Mr.  Wash- 
burn and  for  his  time  while  doing  so.  He  expressly  states  that  he  was 
not  requested  to  use  his  influence  for  Mr.  Washburn,  and  he  also  states 
that  he  used  no  part  of  this  money  to  bribe  any  one  to  get  votes  for  any- 
body. He  further  says  that  he  was  a  Reiiublican,  and  voted  for  Wash- 
burn (pttge  28). 

Abraham  Werrick,  another  one  of  the  alleged  bribed  voters,  makes 
clear  by  his  testimony  that  he  was  a  supporter  of  Washburn,  and  that 
he  received  no  money  to  vote  for  him  (page  29). 

Wdliam  M.  Leyde,  another  alleged  bribed  voter,  says  he  took  part  in 
the  general  campaign  in  behalf  of  the  Republican  ticket;  that  he  sup- 
ported Washburn;  and  that  he  received  no  money  from  Mr.  Washburn 
for  anything  he  did.  It  is  true  this  witness  says  he  received  money  to 
canvass  a  portion  of  his  countv.  This  witness  was  a  Republican  (page 
480). 

C.  Heyer,  another  alleged  bribed  voter  for  Washburn,  did  do  some 
work  in  the  general  canvass,  but  he  was  not  engaged  to  participate 
specially  in  the  election  until  after  he  had  declared,  in  most  emphatic 
terms,  when  asked,  whether  he  would  vote  for  Donnelly,  that  he  would 
not,  and  that  he  would  not  vote  for  a  Greenback  man;  and,  also,  that 


486  DIGEST  OF  ELECTION  CASES. 

he  would  support  Mr.  Washburn  against  Mr.  Donnelly.  In  the  work 
that  this  man  did  he  says  he  simply  peddled  tickets,  and  that  he  did  not 
request  or  persuade  any  one  to  vote  for  Mr.  Washburn  (page  55).  This 
person  also  received  five  dollars  from  a  man  by  the  name  of  Castle,  a 
Democratic  candidate  for  senator,  for  work  on  election  dav  (pages  56, 
57). 

It  is  charged  that  John  C.  Oleson  was  also  bribed.  This  charge  rests 
upon  the  testimony  of  Emil  Shagren,  already  shown  to  be  directly  im- 
peached and  to  be  unworthy  of  credit  by  at  least  three  witnesses.  Ole- 
son, himself,  says  in  most  emphatic  terms  that  he  was  never  i)romised 
any  money  from  any  party,  and  was  never  paid  any  money  by  any  one 
to  take  part  in  the  election  (pages  87-92). 

A  man  by  the  name  of  Shack  is  also  alleged  to  have  been  bribed  to 
vote  for  Washburn.  This  allegation  rests  upon  the  testimony  of  the 
witness  Eogers,  which  is  wholly  and  entirely  hearsay.  Shack  was  not 
called.  Rogers  does  not  undertake  to  give  the  language  of  Mr.  Shack, 
but  only  arrives  at  a  conclusion  that  Mr.  Shack,  an  editor  of  a  paper  in 
Minneapolis,  turned  from  the  support  of  Mr.  Donnelly  to  that  of  Mr. 
Washburn,  because  the  Democrats  had  never  helped  him  in  his  news- 
paper enterprise  (page  89).  Shack  in  the  public  prints  denies  the  whole 
of  Rogers's  testimony. 

Karl  Findler  is  claimed  to  have  been  bribed.  An  examination  of  the 
testimony  relating  to  his  alleged  bribery  furnishes  us  a  key  to  a  vast 
amount  of  the  absurd  claims  made  in  this  case.  A  witness,  Guertin,. 
undertakes  to  state  that  this  man  Findler  sold  his  vote  for  a  sack  of 
flour.  It  turns  out  that  Guertin  was  one  of  those  unsophisticated  but 
would-be  knowing  men  who  nosed  about  and  was  rewarded  In'  being 
made  a  fool  of  by  all  sorts  of  people,  who  imposed  on  his  credulity  by 
telling  stories  which  they  thought  were  suitable  to  his  fancy.  Guertin 
does  say  (page  95)  that  Findler  made  a  passive  admission  that  he  had 
obtained  a  sack  of  flour  from  Mr.  Washburn's  mill  to  vote  for  him.  This 
witness  says  that  he  had  a  talk  with  Findler,  who  was  a  German  and 
spoke  the  English  language  imperfectly,  in  the  presence  of  a  man  by 
the  name  of  Martin  Graham.  He  says  the  conversation  started  between 
Findler  and  Graham,  and  in  a  joke ;  that  Mr.  Findler's  reply  to  a  (ques- 
tion of  Graham's  "was  child-like  and  innocent,  without  evasion"'  (page 
95).  This  man  Graham  also  testifies  in  this  case  that  Karl  Findler  said 
something  to  him  about  "a  hundred  of  flour,"  and  then  he  says  that  he 
knows  himself  that  this  conversation  that  Mr.  Guertin  heard  was  all  a 
joke,  and  he  further  knows  the  fact  that  Findler  made  a  statement  about 
the  flour  just  to  aggravate  Guertin  and  see  him  blow  about  it,  and  that 
in  fact  Mr.  Findler  got  no  flour.  The  following  is  a  portion  of  Graham's 
testimony : 

Q.  Will  yon  state  now  whether,  from  the  character  of  the  conversatiou  and  the  man's 
manners  when  he  said  that  he  got  the  hundred  of  flour  for  voting,  you  thought  he 
was  in  earnest  f — A.  I  did  not. 

Q.  Was  it  in  a  jokiug  conversation  t — A.  I  believe  it  was. 

Q.  Do  you  and  that  man  work  togetlier,  and  are  you  on  friendly  terms  f — A.  We 
have  worked  together  for  a  month  past,  and  we  are  friends.  I  have  voted  for  Mr. 
Donnelly.  Mr.  Guertin  was  present  and  standing  by  at  the  time  that  Karl  Findler 
■made  the  statement  about  the  flour. 

Q.  Do  you  consider  it  a  joking  matter  to  have  a  man  confess  bribery  ? — A.  He  just 
said  it  to  aggravate  Guertin.  because  he  knew  that  Guertin  would  blow  about  it,  and 
I  know  that  he  never  got  a  grain  of  flour. 

Q.  How  do  you  know  that  he  never  got  any  of  that  flour  ? — A.   I  am  certain  of  it. 

Q.  How  are  you  certain  that  he  did  not  get  it  f — A.  Because  I  know  that  he  did  not 
get  it. 

Sevit  Mahla,  of  Minneapolis,  is  mentioned  as  another  of  the  bribed 


DONNELLY    VS.    WASHBURN.  487 

voters.  The  only  testimony  to  support  this  mention  is  that  of  the  wit- 
ness Emil  Shagren,  on  the  character  of  which  we  need  make  no  fur- 
ther comment  (page  16). 

Louis  Kundsen  is  said  to  have  been  bribed,  or  to  have  received  $5  to 
work  all  day  at  the  polls,  but  this  money  was  not  received  from  Mr. 
Washburn,  but  from  his  employers,  Bernard  &  Cope,  who  paid  it  to  him 
as  wages.  He  was  not  required  to  work  specially  at  the  polls  for  Mr. 
Washburn,  but  simply  to  peddle  tickets  (pages  163-3). 

Mr.  Bernard,  who  paid  Kundsen,  said  nothing  to  him  about  working 
for  any  particular  man  on  the  ticket  (page  163-4r).  The  witness  said  he 
<lid  not  try  to  influence  any  man's  vote  at  that  election  (page  164).  This 
man  Kundsen  in  his  testimonj"  expressly  says  that  he  would  have  voted 
for  Mr.  Washburn  if  he  had  not  been  employed  at  the  polls.  His  testi- 
mony also  explodes  much  of  the  theory  of  contestant  on  the  subject  of 
bribed  voters,  notwithstanding  the  fact  that  several  persons  were  em- 
ployed to  work  at  the  polls  on  election  day.  Here  is  an  extract  from 
his  testimony  (page  163) : 

Q.  Do  von  mean  to  sav  that  vou  sold  your  vote  at  the  election  of  November  5, 
1878f— A.'No. 

Q.  Would  you  have  voted  just  aayou  did  without  being  paid  for  itf — A.  Yes,  air. 

Q.  Do  you  know  of  any  money  having  been  paid  for  votes  before  or  at  the  Novem- 
ber election,  1878,  hy  Mr.  Washburn  or  any  person  acting  for  him  with  his  knowledge 
•or  consent  f — A.  No. 

Q.  Do  you  know  of  any  promise  having  been  made  or  reward  offered  to  any  person 
for  his  vote  bj'  Mr.  Washburn  or  any  person  authorized  by  himf — A.  No. 

Q.  Do  you  know  of  any  vote  having  been  cast  for  Mr.  Washburn  at  the  election  No- 
vember 5,  1878,  which  was  paid  for  by  Mr.  Washburn  or  any  person  authorized  by 
him? — A.  No. 

Louis  Paulson  is  said  to  have  been  bribed  to  vote  for  Mr.  Washburn. 
The  testimonj^  does  not  support  this  claim  in  any  degree.  There  is  some 
highly  unsatistactory  testimony  offered  to  show  this  man  was  paid  $5 
(not  by  contestee  or  by  his  agent  or  special  friends)  to  peddle  tickets  at 
the  polls  (page  164). 

All  that  has  been  said  in  relation  to  Louis  Kundsen  will  apply  to  Louis 
Panlson  (pages  161-4). 

W.  K.  Metcalf,  alleged  to  have  been  bribed  to  vote  for  the  sitting 
member,  makes  very  clear  by  his  testimony  that  he  was  not  engaged  be- 
fore or  on  election  day  in  the  interest  of  either  Washburn  or  Donnelly, 
and  that  he  did  not  do  any  work  in  the  interest  of  Mr.  Washburn.  He 
<iid  handle  tickets,  but  for  other  candidates.  He  was  not  a  partisan  of 
either  Washburn  or  Donnelly ;  neither  of  them  was  his  choice.  He 
was  a  Republican  and  was  employed  by  certain  candidates  who  were  run- 
ning for  State  and  county  offices.  He  was  employed  to  get  out  the  vote 
in  his  precinct  by  providing  means  of  transportation  for  voters  who  had 
no  teams  (pages  183-5). 

Peter  Qua*ly  it  is  pretended  was  bribed  in  Washburn's  interest. 
This  the  witness  expressly  denies,  and  says  that  he  did  not  "receive 
any  money  between  Washburn  and  Donnelly"  (page  201).  He  says  he 
did  not  urge  any  person  to  vote  for  Washburn  for  Congress.  The  wit- 
ness Quady  declined  to  state  who  paid  him  money  to  work  at  the  polls, 
but  he  repudiates  the  charge  that  he  received  any  money,  or  promise  of 
money,  ''between  Donnelly  and  Washburn,"  from  anybody. 

Louis  N.  Gayner,  said  to  have  been  bribed  by  Washburn,  or  his 
friends,  also  says  that  he  received  no  money  for  his  vote,  influence,  or 
.services,  at  or  before  the  election,  from  Mr.  Washburn,  or  any  person 
Acting  for  him  or  in  his  behalf.  He  declines,  when  on  the  witness  stand, 
to  state  for  whom  he  voted.     He  does  say  on  cross-examination  that  his 


488  DIGEST  OF  ELECTION  CASES. 

opinion  was  in  favor  of  Washburn,  but  that  the  interest  he  took  in  the 
election  was  not  on  his  account,  but  on  account  of  some  other  person 
(pages  206-7). 

Peter  Engljerg,  who  was  alleged  to  have  been  bribed,  says,  also,  that 
he  was  employed  for  some  of  the  local  candidates,  but  that  he  took  no 
interest  in  the  election  of  Washburn  further  than  the  majority  of  voters 
in  Minneapolis.  He  expressly  says  that  he  received  no  money  from  Mr, 
Washburn,  Major  Hale,  or  Charles  W.  Johnson.  He  also  says  that  he 
had  no  financial  or  private  interest  in  the  election  of  Washburn  ;  that 
he  was  promised  nothing  and  offered  nothing  for  his  services,  influence^ 
or  anything  connected  with  Washburn's  election ;  and  he  further  says 
that  he  knows  of  no  vote,  or  services,  or  influence  for  Mr.  Washburn 
that  was  secured  bj'  him,  or  any  person  for  him,  by  the  payment  or 
promise  of  any  money,  or  other  valuable  thing.  He  testifies  that  he 
was  employed  to  do  nothing  in  connection  with  the  election,  except  to 
get  out  a  full  vote  in  favor  of  the  Eepublican  ticket  (pages  207-209). 

Bernard  Cloutier  (pages  211-213),  who  is  one  of  the  persons  supposed 
to  have  been  bribed,  says,  in  his  testimony,  he  received  some  money  from 
Charles  W..  Johnson  for  his  influence  and  work  at  two  different  times^ 
and  that  he  was  to  go  out  in  the  country  and  electioneer  for  AVashburn 
and  the  rest  of  the  Republican  ticket.  This  service  he  performed.  And 
then  he  says: 

There  was  no  money  or  other  consideration  offered  to  me  or  received  by  me  for  my 
TOte  for  Mr.  Washburn  or  anybody  else.  My  choice  as  between  Mr.  Donnelly  and 
Mr.  Washburn  prior  to  any  negotiations  for  my  services  was  for  Mr.  Washburn.  I 
knew  Mr.  Washburn,  and  did  not  know  Mr.  Donnelly.  I  was  not  authorized  or  re- 
quested to  use  any  part  of  this  money  to  secure  votes  for  Mr.  Washburn  in  any  way, 
except  to  pay  my  expenses  and  time.  I  do  not  know  of  any  money  or  vahiable  thing 
being  paid,  or  any  promises  made  by  Mr.  Washburn,  or  any  person  in  his  behalf,  to 
any  voter  to  influence  his  vote  in  his  favor  at  said  election  (page  213). 

ToUef  G.  Fladeland,  said  to  have  been  bribed,  admits  in  his  testimony 
that  he  received  money  to  go  to  North  Fork  and  Crow  Lake  Townships 
to  see  some  parties  who  had  not  been  seen,  and  leave  some  tickets.  He 
says,  using  his  own  language:  "I  was  a  Washburn  man  in  politics  at 
the  time  Searle  and  Cooper  called  on  me."  He  had  formerly  been  a 
Democrat,  he  says,  but  not  recently.  The  contestant  here  turned  aside 
from  his  contest  and  desired  this  Scandinavian  to  settle  the  question 
which  recently  agitated  the  whole  country,  to  wit:  Who  was  elected 
President  of  the  United  States,  Hayes  or  Tilden  ^  The  wituess  was  in 
doubt,  and  refused  to  swear  that  either  Hayes  or  Tilden  was  elected, 
(pages  221-22.)  The  testimony  of  Cooper  shows  Mr.  Fladeland  received 
money  to  pay  his  livery  bill,  &c.,  from  Searle  and  Cooper,  which  wa* 
never  repaid  or  expected  to  be  repaid  to  them  (pages  256-7). 

J.  V.  Brower,  a  lawyer  residing  at  St.  Cloud,  Minnesota,  and  regis- 
trar of  the  United  States  land-office  at  that  place,  is  claiuied  to  have 
been  bribed  to  vote  for  Washburn.  He  is  one  of  the  twenty-two  whose 
names  are  given  in  a  list  of  bribed  voters.  His  testimony  discloses  the 
fact  that  he  was  a  Republican  and  a  warm  supporter  of  Mr.  Washburn. 
He  paid  for  some  cigars  in  his  electioneering  for  Washburn.  It  does, 
not  appear  that  this  man  Brower  ever  received  any  money,  himself,  for 
Ms  services  (pages  244,  &c.). 

The  claim  that  A.  J.  Clark  was  bribed  needs  little  or  no  comment. 

He  is  claimed  to  have  been  bribed  to  vote  for  Washburn.  It  does 
not  appear  for  whom  he  voted,  or  even  that  he  voted  at  all  for  Congress- 
man in  1878.  The  same  may  be  said  of  others  of  the  alleged  bribed 
voters. 


DONNELLY    VS.    WASHBURN.  489 

The  testimony  of  one  Nathan  Eichardsou  is  relied  on  to  prove  Clark's 
bribery  (pages  285-9).  No  money  is  shown  to  have  been  paid  him  at 
all,  and  no  agi'eement  to  pay  him  money  is  shown  to  have  been  made 
(page  286).  Kichardson,  on  the  contrary,  says  no  money  was  paid  any 
person  by  Washburn  or  his  agent  to  influence  votes. 

Here  is  an  abstract  from  his  testimony : 

Question.  Do  yon,  of  your  own  knowledge,  know  of  any  money  paid  or  promised^ 
any  reward  ofiered  or  promised,  or  any  valuable  consideration  whatever  given  or 
promised  by  William  D.  Washburn,  or  his  agents-or  any  person  or  persons  acting  for 
nim.  with  his  consent  or  knowledge,  to  any  person  or  persons  in  the  third  Congrea- 
sioual  district  of  the  State  of  Minnesota  for  his  or  their  votes  or  influence  for  William 
D.  Washburn  for  member  of  Congress  at  the  last  general  election,  held  November  5, 
1876  ? — Answer.  No,  sir;  I  have  nu  knowledge  of  any  money  being  paid  or  any  reward 
offered  or  any  valuable  consideration  given  or  promised  to  any  person  or  persons  for 
their  vote  or  influence  for  W.  D.  Washburn. 

Q.  Do  you  know  of  your  own  knowledge  of  any  money  being  used  at  said  election 
by  William  D.  Washburn  or  his  agents,  with  his  consent  or  under  his  direction,  to  in- 
duce voters  to  corruptly  vote  for  William  D.  Washburn  at  said  election  held  Novem- 
ber 5,  187^,  who  would  otherwise  have  voted  for  Ignatius  Donnelly  f — A.  Not  that  I 
know  of.     I  do  not  know  of  anybody  using  money  for  any  such  purposes. 

The  letter  referred  to  in  the  testimony  by  Richardson  was  never  sent 
or  intended  to  be  sent  by  him  to  any  person.  He  says  of  that  letter 
(page  290) : 

Q.  Did  you  send  the  letter  offered  in  evidence  and  marked  Exhibit  A.,  E.  D.  L,  to 
Mr.  L.  Fletcher,  of  Minneapolis  f — A.  No:  I  did  not  send  it  to  him  or  anybody  else. 

Redirect  examination : 
Q.  Was  that  letter  lost  by  you  before  it  was  mailed? — ^A.  I  thiuk  I  never  intended 
to  mail  it ;  it  was  not  lost  Vtefore  it  was  mailed ;  it  was  not  mailed  by  me ;  I  don't 
know  that  it  was  by  anybody. 

The  letter  itself  (page  285)  does  not  refer  to  the  matter  of  bribing  voters 
or  to  bribery  in  any  form ;  it  only  speaks  of  money  to  be  used  in  aiding 
Clark  to  publish  his  paper,  in  which  he  was  already  opposing  Donnelly^ 

Mr.  Buss,  of  Long  Prairie,  is  alleged  to  have  been  bribed  to  Aote  for 
Washburn.  In  the  light  of  the  evidence  this  charge  descends  to  the  pe- 
diculous. One  Milo  Porter  testifies  that  Buss  was  a  Republican,  the 
treasurer  of  Todd  County,  and  an  ardent  supporter  of  Washburn 
throughout  (page  293).  He  also  says  Buss,  in  a  public  place  and  in  the 
presence  of  a  number  of  persons,  offered  him  $50  to  support  Washburn 
(page  293).  The  whole  talk  between  Buss  and  Porter  was  of  such  a  char- 
acter as  to  make  it  clear  that  Buss  was  only  joking  with  and  badgering 
Porter  for  the  purpose  of  hearing  him  talk  while  in  a  heated  political 
discussion. 

Porter  swears  he  put  a  card  in  a  paper  about  the  matter,  which  was 
false  (page  295).  He  also  admits  that  he  had  entered  the  list  as  the  "  cJiain- 
pion  Uar"^  of  his  locality  (page  295).  He  admits  that  he  was  a  great  joker 
himself  (page  295),  and  he  then  answers  the  following  question : 

Q.  Do  you  know  of  your  own  knowledge  of  any  money  being  paid  or  reward  given 
by  W.  D.  Washburn,  or  any  person  acting  for  him  with  his  knowledge  and  consent,  to 
any  person  or  persons  for  their  vote  or  influence  at  the  last  election  of  November  5^ 
1878,  or  the  campaign  just  preceding  such  election  ? — A.  I  know  of  none. 

On  such  testimony  as  this  of  Porter  s  the  committee  is  asked  to  find 
that  men  were  bribed  to  vote  for  the  contestee. 

A  man  by  the  name  of  Kitowski  is  said  to  have  been  bribed  in  Wash- 
burn's interest,  and  this  is  claimed  on  the  testimony  of  the  witness 
Brower.  It  may  be  true  that  Kitowski  received  some  money  for  cigars 
and  other  expenses  incurred  at  his  place  in  the  interest  of  Washburn ;. 
but  there  is  nothing  in  the  testimony  that  indicates  that  he  was  paid 
anything  to  support  Mr.  Washburn  (pages  245, 6,  253).    Kitowski  is  not 


490  DIGEST    OF    ELECTION    CASES. 

called  as  a  witness,  but  the  witness  Armstrong,  in  his  testimony,  states 
that  Kitowski  denied  ever  having  received  a  cent  of  money  (page  304.) 

Henry  Armstrong,  the  last  of  the  list  of  alleged  bribed  voters,  says 
in  his  testimony  that  he  was  not  a  supporter  of  Mr.  Donnelly,  and  had 
made  up  his  mind  to  vote  for  Mr.  Washburn  before  any  negotiations 
were  entered  into  with  him  in  relation  to  supporting  Mr.  "Washburn. 
He  does  admit  that  he  received  money  to  see  if  certain  men  would  go 
to  the  polls,  and  if  necessary  to  go  with  his  team  and  get  them.  He 
testifies  that  he  used  the  money  received  by  him  to  pay  for  his  team 
and  for  his  work.  He  did  his  work  before  election,  and  he  was  a  mild 
kind  of  worker.  When  he  went  to  a  voter,  he  says  he  did  not  argue  in 
favor  of  Mr.  Washburn,  but  simply  gave  him  a  ticket  and  he  could  vote 
as  he  pleased  (page  303). 

We  think  we  have  pursued  this  question  of  bribery  of  voters  far 
enough. 

EFFECT   OF   BRIBERY  WHEN   PROVED. 

As  it  is  not  claimed  even  by  the  contestant  that  enough  bribed  votes 
were  cast  to  change  the  result  of  the  election  in  the  district  unless  all 
numbered  ballots  (2,282)  cast  for  contestee  are  rejected  because  they 
were  numbered,  and  unless  the  entire  vote  (538)  cast  for  him  in  Isanti 
County  and  the  total  vote  (832)  given  for  him  in  Polk  and  Kittson 
Counties  are  thrown  out  on  account  of  alleged  defective  returns,  it 
would  seem  to  be  unnecessary  to  go  into  the  question  of  bribery  save  for 
the  purpose  of  vindicating  the  sitting  member. 

As  it  is  very  clear,  and  it  will  be  admitted  that  the  polls  can  be 
purged  of  all  the  alleged  bribed  votes,  or  the  entire  vote  of  certain  vot- 
ing precincts  wherein  the  alleged  bribery  occurred  can  be  thrown  out 
without  affecting  Mr.  Washburn's  majority,  the  rule  contented  for  and 
quoted  by  the  author  of  the  majority  report  of  the  committee  (page  16), 
taken  from  the  minority  report  in  Piatt  vs.  Goode  (Con.  Elec.  Cases, 
1871-'76,  p.  650)  would  still  give  Mr.  Washburn  his  seat. 

The  English  cases  cited  from  Cush.  Par.  Law  (p.  70,  sec.  189,  and  page 
68,  section  181)  do  not  goto  the  extent,  as  we  apprehend,  of  holding  that 
the  whole  election  iu  a  district  where  there  are  several  voting  places  is 
void  because  of  the  bribery  at  one  of  those  places  of  an  iusuflBcient 
number  of  votes  to  affect  the  result,  but  they  do  go  to  the  extent  of  hold- 
ing that  an  election  in  a  particular  voting  place  may  be  declared  void. 

The  rule  undoubtedly  is  in  this  country  that  where  bribery/ fraud,  or 
intimidation  is  so  interwoven  with  the  vote  of  any  voting  precinct  that 
it  cannot  be  eliminated  from  the  aggregate  vote  cast  with  certainty, 
the  whole  vote  of  the  precinct  may,  and  perhaps  should,  be  rejected. 
The  unassailed  votes  in  other  voting  places  would,  however,  still  stand. 
Fraud  or  bribery  does  not  vitiate  what  it  does  not  impregnate. 

If  bribery  were  proved  (as  it  is  not)  and  brought  home  to  the  contestee, 
we  should  not  draw  any  tine  legal  distinctions  to  save  him  his  seat. 

The  American  cases  cited  in  contestant's  brief  (Abbott  vs.  Frost,  Con. 
Elec,  1871-76,  page  594,  and  Piatt  vs.  Goode,  supra)  are  all  to  the  effect 
that  before  a  member  can  be  unseated  by  reason  of  his  own  bribery  of 
voters  it  must  appear  that  his  majority  was  obtained  by  such  means. 

To  find  that  a  candidate  received  an  untainted  majority  of  the  votes 
cast,  and  on  that  find  that  he  was  not  elected  for  the  reason  that  other 
votes  were  rejected  on  account  of  bribery  or  other  cause,  would  be  a 
bold  absurdity.  In  a  contested-election  case  iu  either  branch  of  the 
Congress  of  the  United  States  the  sole  question  is  one  of  fact  iu  the  light 


DONNELLY    VS.    WASHBURN.  491 

of  the  law,  viz:  Who  of  the  parties  to  the  case  was  elected,  if  either? 
The  questiou  in  no  possible  case  can  involve  the  fitness  of  the  sitting 
member  to  hold  his  seat.  In  England,  wliere  there  is  no  written  con- 
stitution on  the  subject  of  expelling  a  jnember,  it  may  be  found  that  the 
practice  has  grown  up  of  inquiring  into  the  whole  conduct  of  a  member 
in  the  course  of  a  contestation;  and  if  he  is  found  uuworth.y,  or  rather 
ineligible,  to  hold  his  seat  from  any  good  cause,  he  may  be  unseated  or 
kept  out  of  a  seat,  notwithstanding  he  may  have  received  a  clear  ma- 
jority of  the  honest  votes  cast  in  the  election.  This  under  some  circum- 
stances would  only  be  another  mode  of  expulsion. 

Our  Constitution  provides  the  mode,  and  it  is  the  only  one  pointed 
out,  for  [)urging  the  Bouse  of  a  member  who,  for  crime  or  other  cause, 
is  unlit  or  un worth}'  to  hold  his  seat.  The  Constitution  provides  that 
the  House  may  "  icith  the  concurrence  of  two-thirds  expel  a  member.^ 
(Con.,  Art.  I,  sec.  5,  par.  2.) 

Bribery  or  other  crime  committed  b}'  a  member,  and  which  did  not 
affect  or  influence  the  result  of  his  election,  could  in  no  sense  be  con- 
strued to  render  his  election  void.  Such  has  been  the  holding  in  several 
pf  the  States.  (13  Watts  &  Serg.,  338 ;  Brightley's  Elec.  Cases,  134 ;  Mc- 
Crary  on  Elec,  sec.  229.)  Cushing,  in  his  work  on  elections,  questions 
the  application  of  the  English  rule  in  this  country  in  relation  to  the 
effect  of  bribery  by  the  candidate  or  his  agent  in  an  election,  on  the 
right  or  power  to  declare  an  election  void  (sec.  190).  An  examination 
of  the  English  rule  as  stated  by  Cushing  in  his  work  on  elections  will 
make  it  clear  that  the  principle  the  parliament  proceeds  on  in  declaring 
an  election  void  is  not  that  the  sitting  member  w^as  not  duly  elected, 
but  that  by  his  evil  conduct  he  has  rendered  himself  unworthy  of  being 
elected  and  of  holding  a  seat  in  the  British  Parliament.  The  election 
of  a  member  under  such  circumstances  is  declared  void  as  a  punishment 
to  the  member  and  as  a  mode  of  condemning  evil  practices,  and  also  to 
preserve  the  puritv  and  freedom  of  elections  in  that  country  generally. 
<Cush.,  page  70,  sections  189,  IIX),  191.) 

Most,  if  not  all,  of  the  English  cases  put  the  rule  on  the  ground  that 
bribery  works  a'disqualiflcation  of  the  member  to  be  elected  to  and  to 
occupy  a  seat  in  the  body  to  which  he  was  elected.  The  basis  of  the 
English  rule  which  allows  in  a  contested-election  case  arising  over  the 
election  of  a  member  of  the  House  of  Commons  a  finding,  where  it  is 
proved  that  the  person  actually  receiving  the  highest  number  of  votes 
was  guilty  by  himself  or  his  agent  of  bribing  only  a  portion  of  his  ma- 
jority, that  he  was  not  elected,  must  be  kept  in  view  to  enable  a  clear 
distinction  to  be  drawn  between  the  rule  which  obtains  in  England  and 
the  true  rule  in  the  American  Congress. 

At  common  law  bribery  at  elections  of  members  of  Parliament  was  a 
•crime,  (liex  vs.  Pitt,  3  Burrows,  1335,  &c. ;  1  Kussell  on  Crimes,  155.) 
The  punishment  at  common  law  for  such  bribery  was  found  inadequate, 
and  hence  the  passage  of  the  statute  known  as  "T/te  treating  act,'"  of  7 
W.  HI,  chap.  4  (1095),  which  provided  that  if  any  candidate,  after  the 
issuing  of  the  writ  for  an  election,  should  give  or  promise  any  money  or 
entertainment  to  any  elector  he  should  be  incapable  to  serve  for  that 
place  in  Parliament — tliat  is,  upon  that  election.  The  punishment  pro- 
vided by  this  act  was  fixed  to  remedy  the  defects  of  the  common  law- 
which,  while  it  punished  bribery,  «&c.,  in  elections,  provided  no  disqualiji, 
cation  to  hold  an  ottice,  and  such  had  been  the  holding  of  courts  and 
legislative  bodies. 

It  appears  from  good  authority — Jacobs  (author  of  the  Law  Diction- 
ary), who,  after  citing  statutes,  2  Geo.  II,  c.  24(1731) ;  9  Geo.  II,  c.  38; 


492  DIGEST    OF    ELECTION    CASES. 

and  16  Geo.  Ill,  c.  11,  which  attached  some  peualties  to  election  bribery 
in  the  shape  of  fines,  says:  "But  these  statutes  do  not  create  any  inca- 
pacity of  sitting  in  the  Home.  That  depends  solely  upon  the  treating  act 
above  mentioned,"'  referrinff  to  the  act  of  7  W.  Ill,  c.  4.  (See  Jacobs's 
Law  Dictionary,  title  Parliament,  VI  (B3),  vol.  5,  page  76,  ed-  lS13j 
see  Russell  on  Crimes,  155.  151)fl,  ed.  1845.) 

The  act  of  5  and  6  Vict.,  c.  102.  extends  the  treating  act  of  W.  Ill, 
and  makes  it  include  the  acts  of  the  agents  of  the  candidate  as  well  as 
of  himself,  and  make  such  acts,  whether  of  himself  or  of  his  agents,  "  di- 
rectly or  indirectly,"  sufiBcient  to  disqualify.  The  agent  is  a  well-known 
and  recognized  element  in  British  Parliamentary  elections,  of  which  we 
know  nothing  in  this  country.  The  candidate  selects  him  in  that  coun- 
try, and  hence  there  is  no  hardship  iu  holding  the  principal  responsible 
for  his  acts;  otherwise  all  amenability  for  criminal  conduct  at  elections 
there  would  be  avoided. 

There  are  other  English  statutes  upon  the  subject  of  treating,  &c.,  at 
elections,  and  making  candidates  responsible  for  the  action  of  their 
agents  as  well  as  their  own  acts,  which  must  be  kept  in  mind  in  reading 
Rogers,  Douglas,  and  other  English  authorities  whose  comments  are 
upon  cases,  governed  bj-  these  statutes,  which  are  not  authority  for  us. 

That  bribery  b^'  a  candidate  for  an  elective  oftice  (in  the  absence  of  a 
statute  making  it  a  disqualification)  does  not  (lisqualify  to  hold  the  office 
at  the  common  law  was  held  by  the  Court  of  Queen's  Bench  in  Regina 
vs.  Thwaits,  18  Eug.  Law  and  Eq.  Reports,  219,  221,  iu  a  proceeding  iu 
the  nature  of  a  quo  warranto  to  try  the  title  to  an  office,  where  acts  were 
shown  which  were  by  the  court  held  to  amount  to  bribery,  but  which  did 
not  affect  votes  enough  to  change  the  majority,  and  the  respondent  was 
therefore  held  entitled  to  retain  his  seat  as  a  member  of  a  municipal 
council. 

The  same  doctrine  is  held  in  Pennsylvania  as  to  a  sheriff,  in  Com.  vs. 
Shaver  (3  Watts  and  Sergeant,  page  338). 

The  English  rule  laid  down  by  Cushing  in  his  excellent  work,  with- 
out giving  either  the  origin  or  reason  of  the  rule,  is  calculated  to  mislead 
persons  in  this  country. 

It  is  quite  demonstrable  that  the  rule  owes  its  existence  to  disquali- 
fying statutes  of  England,  and  can  have  no  application  to  questions 
arising  in  the  Congress  of  the  United  States  under  our  present  Consti- 
tution and  laws. 

In  the  Galway  election  case  (2  English  Reports  (Moak's  ed.),  pages 
711,  723),  where  it  was  argued  that  bribery,  treating,  and  undue  influ- 
ence were  not  disqualifications  at  the  common  law,  and  that  the  act  of 
17  and  18  Vict.,  chap.  102,  repealed  all  the  earlier  acts  making  them  a 
disqualification,  and  itself  only  made  these  acts  a  disqualification  by  the 
thirty-sixth  section,  "after  they  had  been  found  guilty  of  the  acts  %  an 
election  committee,"  the  court,  taking  a  different  view,  gave  the  opinion, 
not  that  the  common  law  made  these  acts  a  disqualification,  but  that,  to 
quote  from  the  opinion  of  the  judge  announcing  the  decision  of  the 
court — 

The  true  construction  of  the  statute  itself  is  that  the  commission  of  any  of  these 
offenses  ipso  facto  disqualifies  the  candidat'e  from  being  elected,  or  annihilates  hi» 
status  as  a  candidate. 

The  theory  of  the  English  cases  is  that  a  candidate  is  for  the  particu- 
lar election  in  which  the  candidate  or  his  authorized  agent  violates  the 
disqualifying  statutes  he  becomes  ineligible  to  an  election.  No  such 
rule  obtains  under  the  Constitution  and  laws  of  the  United  States  as  to- 
Representatives  in  Congress. 


DONNELLY   VS.    WASHBURN.  493 

An  exaniiuatiou  of  all  the  cases  cited  iu  Eogers,  Douglas,  and  other 
English  authorities  where  a  member  of  Parliament  has  been  unseated 
for  bribery,  treating,  &c.,  by  himself  or  his  agents,  where  the  votes  thus 
affected  were  less  in  number  than  his  majority,  will  show  that  iu  every 
case  the  decision  rests  upon  special  English  statutes,  with  which  we 
have  nothing  to  do. 

Bribery  in  procuring  an  office  is  made  a  disqualification  for  holding 
the  office  by  the  constitutions  of  the  States  of  Massachusetts,  ^ew 
Hampshire.  Vermont,  Ehode  Island,  ^larylaud,  Missouri,  Arkansas, 
Texas.  California,  and  Florida. 

Bril>ed  votes  should  undoubtedly  be  rejected,  but  unless  they  are 
numerous  enough  to  change  the  majority,  the  candidate  receiving  the 
majority  should  be  declared  elected.     (See  3  Arch.  Cr.  Pro.,  470^-570'".) 

It  is  said  that  in  some  of  the  States  in  this  country  where  bribery  in 
elections  is  made  by  constitutional  provision  a  disqualification  to  hold 
an  office,  and  bribery  is  proved  against  the  candidate  receiving  the 
highest  vote,  the  election  should  be  declared  void,  even  though  the 
bribery  did  not  affect  the  result.     (Cush..  sections  190,191.) 

In  some  of  the  States  it  is  held  that  prior  conviction  of  the  disqualify- 
ing crime  is  necessary  before  such  a  rule  can  be  applied  by  a  legislative 
assembly.  It  is  not  admitted  that  either  the  organic  act  of  a  State  or 
its  legislature  can  ])rescribe  disqualifications  of  any  kind  for  a  member 
of  the  House  of  Eepresentatives  of  the  United  States,  but  it  may  be 
proi)er  to  state  here  that  the  constitution  of  Minnesota  (section  15,  arti- 
cle i)  gives  full  power  to  the  legislature  of  that  State  to  render  ineligible 
to  hold  office  any  person  guilty  of  crime,  and  that  legislature  has  not 
made  bribery  of  voters  a  disqualification  to  hold  office,  but  it  has  only 
made  it  a  misdemeanor,  punishable  by  fine  and  imprisonment  in  the 
county  jail.     (Stat.  Minn.  1S78.  page  5,  section  GG.) 

It  may  be  observed  that  under  no  provision  of  the  Constitution  of  the 
United  States  does  crime  committed  by  a  member  in  his  election  dis- 
qualify him  from  taking  and  holding  his  seat. 

The  reason  for  the  English  rule  wholly  fails  in  the  case  of  a  member 
of  the  House  of  Representatives. 

Justice  Johnson,  of  the  Supreme  Court  of  the  United  States,  in  an 
early  case,  in  speaking  of  distinctions  between  American  and  English 
legislative  bodies,  said : 

American  legislative  bodies  have  never  possessed  or  pretended  to  the  omnipotence 
wliicb  constitutes  the  leading  feature  in  the  legislative  assembly  of  Great  Britain, 
and  which  may  have  led  occasionally  to  the  exercise  of  caprice,  under  the  specioos 
appearance  of  merited  resentment.     (6  Wheatou,  231.) 

No  case  has  been  found  in  this  country  where  any  such  rule  (in  the 
absence  of  an  express  constitutional  provision)  as  is  claimed  to  exist  in. 
England  has  obtained  in  the  House  of  Representatives  of  the  United 
States,  or  in  any  of  the  States  of  this  Union,  but  there  are  a  number  of 
cases,  as  already  appears,  where  the  rale  is  entirely  disregarded. 

McCrary  in  his  excellent  work  on  "  American  Law  of  Elections"  does 
not  refer  to  or  recognize  any  such  rule,  but  all  through  his  work  it  is 
taken  for  granted  that  no  such  rule  has  ever  had  any  application  to  a 
contest  in  the  House  of  Representatives  of  the  United  States. 

It  is  true  the  Constitution  of  the  United  States  makes  "  eaeh  hotise 
the  judge  of  the  elections,  returns,  and  qualijicatiom  of  its  own  members." 
(Article  I,  section  5). 

In  judging  of  the  election  of  a  member,  the  House  deals  alone  with  the 
question  of  the  number  of  votes  the  member  received,  and  if  it  appears 
that  he  has  a  majority  of  the  votes  cast,  excluding  all  illegal  and  void 


494  DIGEST    OF    ELECTION    CASES. 

votes  cast,  and  a  full  and  fair  election  has  been  held  by  which  such  ma- 
jority has  been  obtained,  or  at  least  the  maiority  would  not  have  been 
affected  by  any  uufairness  or  improper  practices  in  the  election,  then 
the  conclusion  is  irresistible  that  such  member  has  been  duly  elected* 

In  judging  of  the  returns  of  its  members,  the  House  deals  with  the 
formal  returns,  at  least  preliminarily,  on  which  a  member  is  expected  to 
be  admitted  to  a  seat  in  the  first  instance. 

In  judging  of  the  quaUfications  of  a  member,  neither  the  question  of 
election  nor  returns  is  involved.  The  qualifications  of  a  member  of  the 
House  of  Representatives  are  fixed  by  the  Constitution  of  the  United 
States,  as  follows : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  twenty- 
five  years,  and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,^ 
■when  elected,  be  an  inhabitant  of  that  Stat*  in  which  he  shall  be  chosen.  (Article  I, 
section  2). 

Of  these  prescribed  qualifications  the  House  is  the  exclusive  and  final 
judge. 

If  before  a  person  has  been  sworn  in  and  taken  his  seat  the  House 
were  to  decide  that  he  did  not  possess  the  constitutional  qualifications, 
he  could  not  be  admitted  to  a  seat.  Even  if  sworn  in  as  a  member  it 
would  probably  not  require,  an  expulsion  to  vacate  his  seat  if  the  House 
were  to  adjudge  him  without  requisite  constitutional  qualifications  en- 
titled to  hold  a  seat. 

The  power  to  expel  a  member  is  given  to  meet  cases  of  members  ad- 
mitted to  seats  who  would,  under  the  Constitution,  be  qualified  to  sit, 
but  for  other  than  constitutional  causes  would  be  disqualified  or  un- 
worthy to  be  a  member  of  the  legislative  body  in  the  judgment  of  two- 
thirds  of  the  House.     (Article  I,  section  5.) 

The  Committee  on  Elections,  under  the  rules  of  the  House,  have  only 
jurisdiction  to  consider  such  petitions,  &c.,  touching  elections  and  re- 
turns as  shall  come  into  question.  Such  has  been  the  rule  of  the  House 
since  November  13,  1789. 

We  here  quote  the  rule  adopted  at  that  date  with  a  slight  amendment 
of  date  of  November  13,  1794: 

It  shall  be  the  duty  of  the  Committee  on  Elections  to  examine  and  report  upon  the 
certificates  of  election,  or  other  credentials,  of  the  members  returned  to  serve  in  this 
House,  and  to  take  into  their  consideration  all  such  petitions  and  other  matters  touch- 
ing elections  and  returns  as  shall  or  may  be  presented  or  come  into  question  and  be  re- 
ferred to  them  by  the  House.     (Con.  Manual  and  Digest  (Smith),  Eule  75.) 

Under  the  above  rule  this  case  was  referred  to  the  Committee  on  Elec- 
tions. 

It  will  be  observed  that  under  it  the  committee  is  given  no  power  to 
consider  questions  of  disqualifications  of  a  member  to  hold  his  seat  where 
it  appears  that  he  has  been  duly  elected. 

The  new  rule"  of  the  House,  adopted  March  2, 1880,  relating  to  the 
powers  of  the  Committee  on  Elections,  is  as  follows: 

All  proposed  legislation  shall  be  referred  to  the  committees  named  in  the  pre.ceding 
rule,  viz:  Subjects  relating  (1)  to  the  election  of  members:  to  the  Committee  on  Elec- 
tions.    (Rule  XI.) 

By  neither  the  old  nor  the  new  rules,  it  will  be  seen,  has  the  Committee 
on  Elections  any  power  excei)t  such  as  relates  to  the  election  of  members. 

The  conclusion  is  irresistible  that  the  committee  has  no  right  to  re- 
port against  a  sitting  member  who,  as  in  this  case,  two-thirds  of  the 
committee  find  in  effect  was  dulv  elected. 


DONNELLY    VS.    WASHBURN.  495 

NUMBERED  BALLOTS. 

It  is  claimed  that  iii  seven  precincts  of  the  city  of  Minneapolis  the 
judges  of  election  placed  a  number  on  the  back  of  each  ballot  to  cor- 
respond with  the  number  of  the  voter  on  the  poll-list,  and  that  the 
purpose  of  doing  this  was  to  work  a  fraud  upon  the  people,  and  to  in- 
timidate the  voter  so  as  to  require  him  to  cast  his  vote  for  the  sitting^ 
member.  The  ballots  were  numbered  in  these  seven  precincts  in  exact 
accordance  with  the  provision  of  the  law  of  the  State  of  Minnesota,, 
"which  had  been  passed  about  eight  months  before  the  time  the  election 
"was  held  in  the  fall  of  1878.  (See  Sessions  Laws  of  Minnesota,  1878, 
pages  133  and  134.)  An  inspection  of  this  law  will  show  that  it  was 
carefully  drawn,  and  in  all  respects  provided  for  a  secrecy  of  the  ballots 
by  the  judges  and  clerks.  A  penalty  of  a  fine  and  imprisonment  is 
imposed  upon  any  judge  or  clerk  of  election  for  disclosing  or  allowing 
to  be  disclosed  how  any  voter  voted  at  an  election.  (See  Sessions- 
Laws,  page  137.) 

Prior  to  the  election  in  ]S^ovember,  1878,  a  judge  of  the  district  court 
of  the  State  of  Minnesota  had  declared  this  law  requiring  ballots  to  be 
numbered  by  the  oflBcers  holding  the  election  to  be  unconstitutional,  on 
the  general  ground  that  it  was  a  violation  of  the  secrecy  of  the  ballot 
(Record,  page  74).  Since  the  election  of  1878,  and  since  this  case  was  ar- 
gued before  the  subcommittee,  a  decision  has  been  rendered  by  the 
supreme  bourt  of  the  State  of  Minnesota,  holding  this  law  to  be  uncon- 
stitutional. Your  committee  need  not,  for  the  purposes  of  this  case,  turn 
aside  to  consider  whether  this  law  is  unconstitutional  or  not,  and  it  may 
be  regarded,  so  far  as  the  election  of  State,  county,  and  municipal  offi- 
cers in  the  State  of  Minnesota  are  concerned,  as  unconstitutional.  But 
we  hold,  first,  that  in  so  far  as  this  law  related  to  the  judges  of  the  elec- 
tion in  the  election  of  a  member  of  the  House  of  Eepresentatives  of  the 
United  States,  it  was  constitutional ;  and,  second,  whether  it  is  to  be 
regarded  as  constitutional  or  not  constitutional,  the  numbering  of  the 
ballots  affords  no  reason,  in  the  light  of  the  law  and  the  precedents,  for 
rejecting  the  vote  as  cast.  The  legislature  of  a  State  does  not  acquire 
its  right  or  power  to  make  a  law  regulating  the  manner  of  holding  elec- 
tions for  Representatives  in  Congress  from  the  constitution  of  the  State, 
but  this  right  and  power  is  derived  exclusively  from  the  Constitution  of 
the  United  States.  Section  4,  Article  I,  of  the  Constitution  of  the  United 
States  is  as  follows : 

The  times,  places,  aud  manuer  of  holding  elections  for  Senators  and  Representa- 
tives shall  be  prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress- 
may  at  any  time  by  law  make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators. 

This  provision  of  the  Constitution  of  the  United  States  has  been  under 
consideration  in  a  very  recent  case  in  the  Supreme  Court  of  the  United 
States  (ex-parte  Seibold  et  al). 

An  examination  of  the  opinions  delivered  by  Judges  Bradley  and 
Field,  the  former  for  the  majority  of  the  court  and  the  latter  for  the  two 
dissenting  judges,  will  show  that  on  the  question  of  the  derivation  of  the 
power  of  the  legislature  to  make  laws  regulating  the  manner  of  holding 
elections  for  members  of  Congress,  all  the  judges  agree  that  the  legisla- 
ture obtains  its  power  from,  aud  solely  from,  the  provision  of  the  Con- 
stitution just  quoted.  The  State  legislature  is  not  responsible  to  the 
State,  nor  controlled  by  the  State  constitution,  in  its  action  in  regard  to 
the  manner  of  holding  Federal  elections.  In  case  of  a  conflict  between 
the  a<;t  of  a  legislature  and  the  constitution  of  the  State  in  matters 


496  DIGEST    OF    ELECTION    CASES. 

purely  of  a  Federal  cliaracter,  the  act  of  the  legislature  will  prevail, 
provided  it  is  not  in  conflict  with  the  Constitution  of  the  United  States. 
This  point  was  distinctly  decided  in  the  contested-election  case  of  Bald- 
win rs.  Trowbridge  (Contested  Election  Cases  in  Congress,  1865  to  1871, 
page  46). 
The  syllabus  of  that  case  reads  as  follows : 

Where  there  is  a  conflict  of  authority  between  the  constitution  and  legislature  of  a 
State  in  regard  to  fixing  the  place  of  elections,  the  power  of  the  legislature  is  para- 
moant. 

The  case  arose  over  the  constitutionality  of  an  act  of  the  legislature 
of  the  State  of  Michigan,  passed  February  5,  1864,  which  undertook  to 
give  to  Michigan  .soldiers,  while  in  the  service  of  the  United  States 
during  the  late  war,  the  right  to  vote  at  all  elections  authorized  by  law, 
whether  at  the  time  of  voting  they  were  within  the  limits  of  the  State  of 
Michigan  or  not.  The  constitution  of  the  State  of  Michigan  in  express 
terms  required  the  electors  to  reside  in  the  State  three  months  and  in  the 
township  or  ward  in  which  they  offered  to  vote  ten  days  next  preceding 
«uch  election.  The  act  of  the  legislature  was  declared  by  the  Michigan 
courts  unconstitutional,  and  yet  Mr.  Trowbridge,  the  sitting  member  in 
that  case,  was  allowed  to  retain  his  seat,  although  he  was  elected  by  the 
vote  of  soldiers  who  were  absent  from  the  State,  and  who  voted  in  ac- 
cordance with  the  act  named.  The  committee  in  that  case  reported,  and 
the  House  sustained  its  report,  that  the  law  was  constitutional  in  so 
far  as  it  provided  qualifications  of  electors  who  voted  for  members  of 
the  House  of  Representatives  of  the  United  States. 

Little  need  be  said  in  view  of  the  decisions  of  the  court  and  of  the 
House  of  Representatives  to  enforce  this  view.  The  power  of  the  legis- 
lature, being  derived  directly  from  the  Constitution  of  the  United  States, 
to  regulate  the  manner  of  holding  elections  for  members  of  the  House 
of  Representatives  can  in  no  sense  be  controlled  or  limited  by  the  con- 
stitution of  the  State.  And  there  is  no  limit  placed  on  the  power  of  the 
legislature  by  the  Constitution  of  the  United  States  as  to  the  manner 
of  holding  elections  for  Representatives.  (See  McCrary's  Law  of  Elec- 
tions, sections  109,  110,  111,  112). 

There  is  an  unbroken  line  of  decisions,  however,  which  are  to  the 
•effect  that  notwithstanding  ballots  are  numbered  in  the  absence  of  or 
in  violation  of  law,  they  are  still  to  be  counted.  McCrary.  in  his  Law 
of  Elections  (section  312),  lays  down  the  rule  thus : 

Where  the  statute  makes  it  a  miadeuieanor  for  the  officer  of  election  to  place  any 
number  or  mark  on  the  ballot  of  the  voter,  but  does  not  declare  that  ballots  so  marked 
or  numbered  by  such  officer  shall  be  rejected,  the  true  rule  is  to  receive  and  count 
them.  To  reject  such  ballots  would  be  to  establish  a  rule  under  which  an  officer  of 
^n  election  could  destroy  the  effect  of  a  ballot  cast  in  good  faith  by  a  legal  voter  by 
placing  a  number  or  mark  upon  it. 

The  direct  question  came  up  in  the  Forty-second  Congress  in  the  con- 
test of  Giddings  vs.  Clark  (House  Contested  Election  Cases,  1871  to 
1876,  page  91),  from  the  third  district  of  Texas.  It  appeared  in  that 
«ase  that  the  tickets  were  marked  with  numbers,  contrary  to  the  statute 
of  the  State  of  Texas,  which  statute  made  it  a  misdemeanor  for  any 
judge  of  election  to  place  any  number  or  mark  upon  the  vote  of  any 
voter,  but  which  statute  did  not  declare  that  the  vote  of  a  legally  quali- 
fied voter  should  be  rejected  because  his  ballot  was  marked  by  the 
judges.  The  committee  of  the  House  in  that  case  was  unanimous  in 
holding  that  ballots  thus  numbered,  although  in  violation  of  the  direct 
terms  of  the  statute  of  the  State  of  Texas,  should  still  be  counted.  The 
report  was  drawn  by  the  Hon.  George  W.  MeOrary,  the  author  of  the 


D0>"  NELLY    Y?.    WASHBURN.  497 

valuable  work  on  American  Law  of  Elections,  and  it  was  concurred  in 
by  all  the  member.s,  both  Republican  and  Democratic.  On  that  report 
Mr.  Gi<ldings,  the  contestant,  a  Democrat,  was  given  his  seat,  and  the 
Kepublican  was  unseated.    We  quote  from  that  report : 

We  would  not  be  inclined  to  put  a  coustruction  upon  this  statute  which  would 
euable  an  officer  of  election  to  destroy  the  effect  of  a  ballot  cast  in  good  faith  of  a  legal 
voter  by  placing  a  number  or  mark  on  it.  A  ballot  may  thus  be  marked  or  numbered 
■without  the  knowledge  or  consent  of  the  voter,  and  it  would  be  manifestly  unjust 
that  he  should  be  in  this  way  deprived  of  his  vote.  We  think  it  plain  that,  inasmuch 
as  the  statute  fixes  the  penalty  for  marking  a  ballot,  and  does  not  expressly  declare 
that  a  marked  ballot  should  be  thrown  out,  the  board  erred  in  rejecting  the  vote 
of  this  county  upon  this  ground. 

The  same  question  is  directly  made  in  the  case  of  McKenzie  vs.  Brax- 
ton, Forty-second  Congress,  Contested  Election  Cases,  1871  to  1876,  pages 
19  to  25.  The  report  of  the  committee  in  this  case  was  unanimous,  and 
in  favor  of  counting  the  numbered  ballots.  This  was  a  Virginia  case. 
There  had  been  a  statute  in  Virginia  requiring  ballots  to  be  numbered, 
but  a  short  time  prior  to  the  election  which  gave  rise  to  the  contest 
this  provision  was  repealed.  But,  notwithstanding  the  repeal,  certain 
ballots  were  numbered.  The  majority  of  the  Election  Committee  of  this 
House  in  th^  Forty-tifth  Congress  decided  to  count  ballots  numbered  in 
violation  of  law.     (Finley  vs.  Bisbee,  Report  95,  page  28,  by  Mr.  Cobb.) 

Maiiy  States  in  the  Union  require  ballots  to  be  numbered — some  by 
constitutional  provision.  Pennsylvania,  Kentucky,  and  Georgia  are 
examples  where  ballots  are  required  to  be  numbered  by  the  organic 
law  of  the  State,  and  it  seems  to  be  for  the  purpose  of  enabling,  in  case 
of  a  contest,  the  true  result  to  be  ascertained,  and  also  for  the  purpose 
for  i)reventing  frauds  and  ballot-box  stuffing.  Many  persons  believe 
that  the  greater  the  publicity  of  the  vote  the  more  clear  and  honest  will 
be  the  expression  of  the  will  of  the  people.  In  some  States  voting  viva 
voce  has  been  successfully  tried.  The  people  of  Virginia,  from  before 
the  time  of  the  Declaration  of  Independence  (June  29, 1776)  and  during 
our  constitutional  government  up  to  the  rebellion,  voted  uniformly 
viva  voce.  George  Washington,  John  Randolph  of  Roanoke,  and  all  of 
the  distinguished  men  of  Virginia  were  ardent  advocates  of  this  mode 
of  expressing  the  will  of  the  people.  The  people  of  the  State  of  Ken- 
tucky now  vote  at  all  elections  ini'ft  I'oce,  save  for  members  of  Congress, 
which  is  regulated  by  United  States  statutes,  and  it  is  understood  to  be 
universally  approved  by  the  people  of  that  State,  and  this  after  it  has 
been  tried  for  many  years.  Ballots  are  required  to  be  numbered  in  the 
State  of  Illinois. 

Members  of  the  committee  claim  that  the  ballots  were  numbered  in  the 
precincts  named  as  a  mode  of  intimidating  voters.  This  rises  almost  to 
the  dignity  of  a  slander  on  a  large  class  of  workingmen  and  others,  who 
are  usually  the  most  independent  of  voters.  It  charges  them  with  moral 
cowardice.  The  men  who  desire  to  resort  to  treachery  in  pretending, 
for  bribery  or  other  cause,  to  support  one  candidate,  and  then  vote  for 
another  may,  under  soiife  circumstances  be  inconvenienced  by  the 
numbering  of  the  ballots.  How  many  men  are  there  in  any  community 
who  want  to  deny  their  own  manhood  by  saying  they  do  not  wish  any 
person  to  know  for  whom  or  for  what  principle  they  have  voted?  Such 
persons  can  have  no  moral  or  other  real  influence  in  society,  and  they 
cannot  commmand  their  own  or  their  neighbors'  respect.  The  fact  is, 
there  is  rarely  to  be  found  in  any  community  a  single  man  who  has  not 
for  weeks  or  months  openly  avowed  his  purpose  to  support  certain  can- 
didates representing  the  leading  issues  of  the  campaign.  We  are  not 
H.  Mis.  58 32 


498  DIGEST  OF  ELECTION  CASES. 

however,  disposed  to  condemn  the  secrecy  of  the  ballot.  It  may  be  io 
certain  cases  a  protection  to  the  electors.  The  facts  in  this  case  afford 
no  pretense  for  rejecting  the  vote  in  the  precincts  where  the  ballots 
were  numbered. 

There  is  not  an  iota  of  testimony  in  the  whole  record  which  it  can  be 
pretended  tends  to  show  that  one  of  the  electors  in  such  precincts  was 
influenced  by  reason  of  the  ballots  being  numbered.  The  industry  of 
contestant  would  have  discovered  some  such  evidence  if  the  fact  existed. 
The  testimony  does  show  that  one  eccentric  or  cowardly  man,  a  lawyer 
(Robinson),  refused  at  the  polls  to  vote  because  the  judges  proposed  to 
number  the  ballot  (pages  135, 137-138).  This  man  disclosed  the  fact  that 
he  was  a  sort  of  Democrat,  and  that  he  did  not  want  any  person  to 
know  for  whom  he  voted.  The  conclusion  from  Lis  testimony  is  irre- 
sistible that  he  wanted  to  maintain  his  standing  as  a  Democrat  and  at 
the  same  time  vote  for  Mr.  Washburn,  and  that  by  this  means  Mr. 
Washburn  lost  the  vote  of  one  cowardly  lawyer.  Here  are  two  excerpts 
from  his  testimony,  and  further  comment  is  unnecessary: 

Q.  Are  you  a  Republican  or  Democrat? — A.  I  have  always  acted  with  the  Demo- 
crats, except  that  I  do  not  vote  early  and  often.     I  am  always  eatistied  with  one  vote. 

Q.  Were  you  a  partisan  of  Mr.  Ignatius  Donnelly  ? — A.  I  decline  to  answer,  only  to 
state  that  I  am  partisan  to  no  one.  I  desire  to  Aote  independently,  and  that  was  my 
objection  to  numbering  my  ballot. 

No  other  man  save  Mr.  Eobinson  even  asked  the  judges  of  election  to 
refrain  from  numbering  his  ballot.  The  testimony  discloses  that  one  man 
only  remained  from  the  polls  for  the  alleged  reason  that  ballots  were  being 
numbered,  audit  would  seem  that  this  man, desiring  to  give  some  reason 
why  he  did  not  vote,  offered  this  by  way  of  an  excuse  as  an  after- thought. 
It  does  not  appear  that  he  complained  on  the  day  of  election  of  the  num- 
bering of  the  ballots.  Save  these  two  persons  there  could  not  be  found 
among  the  about  twenty-eight  hundred  voters  who  voted  in  the  seven 
precincts  where  ballots  were  numbered  any  person  who  would  even  pro- 
fess that  numbering  the  ballots  had  influenced  him  not  to  vote  or  as  to 
how  he  voted.  This  is  as  it  would  be  expected,  when  we  recollect  the 
true  and  real  character  of  an  American  citizen,  especially  such  as  resides 
in  the  progressive  State  of  Minnesota  and  other  States  of  the  great 
West.  It  must  be  observed  that  the  contestant  does  not  ask  to  be  cred- 
ited with  votes  not  cast  for  him  by  reason  of  the  ballots  being  numbered, 
but  asks  that  all  the  votes  cast  in  the  seven  precincts  where  ballots  were 
numbered  should  be  rejected,  and  the  voters  of  these  seven  precincts  to- 
tally disfranchised.  In  the  effort  of  contestant  to  prove  that  persons 
had  been  influenced  on  account  of  the  numbering  of  the.  ballots,  he 
proved  that  most  of  the  witnesses  who  voted  did  not  know  whether  the 
ballots  had  or  had  not  been  numbered,  and  it  is  to  be  presumed  that 
few,  if  any,  of  the  voters,  save  the  officers  of  election,  in  fact  knew  that 
their  ballots  were  being  numbered. 

Ballots  were  numberetl  in  the  first  and  second  precincts  of  the  second 
ward;  in  the  first,  second,  and  third  precincts  of  the  fourth  ward;  and 
in  the  first  and  third  precincts  of  the  sixth  wjtrd  of  Minneapolis,  and  in 
no  others  in  the  district. 

W.  D.  Hanagan  (page  185),  when  asked,  said  he  did  not  know  whether 
the  ballots  in  his  precinct  were  numbered  or  not,  altliough  he  was  a 
swift  witness  for  the  contestant.  He  was  at  another  precinct  besides 
his  own  for  several  hours  on  the  day  of  the  election,  during  which  time 
he  did  not  find  out  whether  the  ballots  there  were  being  numbered  or 
not. 

Here  are  a  couple  of  questions  put  to  this  \^itnes8,  and  his  answers : 


DONNELLY    VS.    VVASHBL'RN.  4»9 

Q.  Where  were  yoix  dnring  election  day  ? — A.  From  nine  o'clock  to  about  two  and 
a  half  or  three  o'clock  in  the  afternoon  I  was  at  the  first  precinct  of  the  fourth  ward. 
Then  I  went  iii>  to  the  tirst  precinct  of  the  fifth  ward  and  voted,  and  remained  there 
until  the  close  of  the  polls. 

Q.  Were  the  ballots  cast  in  the  first  precinct  of  the  fourth  ward  numbered! — A.  I 
do  not  know  (page  187). 

Thi.s  is  the  testimouy  of  one  of  the  contestant's  witnesses.  "William 
Griuishaw,  who  lived  in  the  second  precinct  of  the  fourth  ward,  and 
who  was  active  there  on  election  day,  says  that  he  was  not  positive  that 
the  ballots  were  numbered  by  the  judg:es  (pages  155  and  181).  The  wit- 
niess  swears  that  he  is  uncertain  whether  the  ballots  were  numbered  in 
the  first  precinct  of  the  fourth  ward. 

The  witness  Gonier,  of  the  first  precinct,  sixth  ward,  who  peddled 
tickets  there  for  candidates,  is  asked,  "Were  the  ballots  numbered  in 
your  precinct?"  and  to  this  he  answers,  "I  do  not  know"  (page  20G). 

There  is  other  testimony  of  the  contestant's  witnesses  of  the  same 
kind.  Had  there  been  complaint  at  all  about  the  numbering  of  the 
ballots  there  would  have  been  no  person  about  the  ]>olls  who  was  ignor- 
ant about  it.  But  for  the  oflScers  of  the  election  the  fact  that  ballots 
were  numbered  at  these  precincts  could  hardly  ha^e  been  proved.  We 
note  this  to  show  that  what  was  not  at  the  time  known  could  not  now 
be  held  to  have  intimidated  the  voters.  It  is  claimed  that  the  ballots 
were  numbered  as  a  part  of  a  scheme  to  intimidate  voters.  The  fact 
appears  to  be  that  all  the  papers  sui)porting  Washburn  published  the 
statement  that  the  ballots  would  not  be  numbered  as  the  law  requires, 
and  it  was  at  the  instance,  in  some  cases,  of  Democrats  that  they  were 
numbered  (pages  130, 170).  The  ballots  were  not,  as  appears  by  the  tes- 
timony, numbered  with  any  view  of  intimidating  voters,  nor  were  they 
numbered,  as  claimed,  in  violation  of  a  professed  agreement  by  the 
judges  of  election  in  ^linneapolis.  It  is  true  there  wa«  a  meeting  to 
consult  about  the  matter,  at  which  the  majority  of  the  election  judges 
present  expressed  the  opinion  that  ballots  should  not  or  need  not  be 
numbered.  The  following  is  the  testimony  of  B.  F.  ^STelson  as  to  this 
meeting  (page  174): 

Q.  Did  you  attend  the  meeting  of  the  judges  of  election  of  this  city  held  shortly 
before  said  election  to  decide  whether  or  not  the  ballots  should  be  numbered  at  the 
election  ?  If  so,  state  when  the  meeting  was  held  and  what  occurred. — A.  I  did 
attend  the  meeting  :  it  was  held  in  the  council  room,  in  the  city  hall  building. 
Opinions  were  given  that  it  might  be  proper  and  lawful  to  number  the  ballots. 
These  opinions  were  given  by  attorneys  called  in  for  that  purpose;  by  other  judges, 
that  it  was  necessary  to  number  them.  Some  judges  decided  not  to  have  them  num- 
bered at  their  precincts.  The  city  attorney,  William  Lochren,  informed  us  one  of  our 
judges  had  decided  that  it  was  unconstitutional  to  number  the  ballots.  We  did  not 
agree  in  that  meeting  whether  to  nnmber  the  ballots  or  not.  There  was  a  motion 
or  resolution  offered,  but  before  the  vote  was  taken  it  was  understood  that  that  mo- 
tion was  not  binding  on  the  judges.  It  was  simply  taken  to  get  the  sense  of  the  meet- 
ing. I  don't  remember  how  the  vote  stood.  It  is  my  impression  that  the  vote  stood 
in  favor  of  numbering  the  ballots. 

Another  one  of  the  judges  testifies  as  follows  (page  143): 

Q.  Did  you  attend  a  meeting  of  the  judges  of  election  of  this  city  held  shortly  be- 
fore said  election  to  decide  whether  or  not  the  ballots  should  be  numbered  at  the 
election  f  If  so,  state  what  occuned. — A.  I  was  present  at  such  a  meeting  at  the 
council  chamber  in  the  city  hall.  There  was  a  discussion,  pro  and  con,  as  to  whether 
the  ballots  should  be  numbered  or  not  numbered.  Some  thought  that  the  law  in 
reference  to  numbering  was  unconstitutional,  but  that  the  supreme  court  of  the  State 
had  not  declared  the  law  as  such ;  and  other  of  the  judges  thought,  as  long  as  it  was 
not  declared  unconstitutional  by  the  supreme  court  of  the  State,  that  the  law  ought 
to  be  obeyed  and  followed;  and  after  somewhat  discussion  of  this  kind  there  was  an 
informal  vote  taken  by  the  judges:  there  were  about  thirteen  or  fifteen  votes  in  the 
affirmative  and  eight  or  ten  in  the  negative.  I  mean  there  was  thirteen  or  fifteen 
in  favor  of  not  numbering  the  ballots  and  eight  or  ten  in  favor  of  numbering, 


500  DIGEST    OF    ELECTION    CASES. 

and  I  voted  with  those  who  were  in  favor  of  numberiusj  ballots,  because  the  law  pre- 
scribed it. 

Q.  Were  the  ballots  deposited  in  the  ballot-box  in  yonr  precinct  at  said  general 
election  held  November  5,  187S,  identified  by  placing  on  the  back  of  the  same  a  nnm- 
ber  corresponding  with  the  number  set  opposite  th;  name  of  the  voter  on  the  poll- 
lists? — ^A.  Well,  the  judge  of  election  received  each  ballot  in  ))resence  of  the  other 
judges  and  the  clerks,  and  called  out  the  name  of  the  voter,  which  was  taken  down 
by  the  clerk  and  numbered,  and  the  same  number  was  written  ou  the  back  of  the  bal- 
lots; that  is  the  way  it  occurred  ;  and  after  it  was  numbered  it  was,  in  the  presence 
.  of  all  the  judgesand  clerks,  deposited  in  the  ballot-box.  There  were  no  exceptions  to 
this  rule. 

John  Hintoii,  a  judge  of  the  electioDj  testified  on  the  same  subject 
(page  177) :  * 

Q.  Did  you  attend  a  meeting  of  the  judges  of  election  of  this  city,  held  shortly 
before  said  election,  to  decide  whether  or  not  the  ballots  should  be  numbered  at  the 
election  ?  If  so,  state  when  the  meeting  was  held  and  what  occurred. — A.  I  attended 
the  meeting ;  the  question  was  discussed.  An  opinion  was  given  by  Mr.  Lochreu,  the 
city  attorney ;  his  opinion  was  that  it  was  unconstitutional  to  number  the  votes,  and 
a  vote  was  taken  by  the  judges  present ;  it  resulted  in  a  decision  to  discontinue  the 
practice  of  numbering  the  votes.  After  that  vote  was  taken  there  was  a  dissenting 
voice,  Mr.  Daniel  Bassett ;  and  the  general  understanding  was  that  the  judges  should 
•use  their  own  judgment  as  to  numbering  of  the  ballots  in  their  several  precincts  or 
wards.  The  meeting  was  held  in  the  council  chamber;  it  was  in  the  afternoon  before 
election,  if  my  memory  serves  me  right. 

J.  H.  Conkey,  also  one  of  the  judges,  in  speaking  of  the  meeting  of  the 
election  judges  to  consult  on  the  subject  of  numbering  the  ballots,  says 
(page  198) : 

Q.  Did  you  attend  a  meeting  of  the  judges  of  election  of  this  city,  held  shortlj 
before  said  election,  to  decide  whether  or  not  the  ballots  should  be  numbered  ?  If  so, 
state  where  the  meeting  was  held,  and  what  occurred. — A.  It  was  held  at  the  council 
chamber  in  the  city  hall ;  I  attended  this  meeting ;  the  matter  was  talked  over  there, 
and  it  was  left  to  the  option  of  the  judges  after  counseling  the  city  attorney.  The  city 
attorney  gave  the  opinion  that  either  way  would  not  invalidate  the  election  ;  I  think 
he  said  that  tliere  had  been  a  decision  rendered  in  Ramsey  County  that  it  was  uncon- 
stitutional to  number  ballots.    I  don't  remember  whether  a  vote  was  taken  or  not. 

The  last  witness  discloses  the  fact  that  legal  counsel  gave  the  opinion 
that  to  number  the  ballots  would  not  invalidate  them,  and  on  this  opin- 
ion some  of  the  judges  acted  rather  than  perform  their  duty  in  express 
violation  of  the  terms  of  the  recent  law  of  the  State  of  Minnesota. 

The  testimony  of  Daniel  Bassett,  a  Democrat,  and  one  of  the  judges, 
should  also  be  read  (page  134). 

But  for  the  importance  attached  to  the  meeting  of  election  judges  by 
the  contestant  and  certain  members  of  the  committee  no  attention  would 
be  given  to  it  here.  The  meeting  was  an  informal  one  and  solely  for  th« 
purpose  of  consultation,  and  was  not  intended  and  could  not  have  been 
Intended  to  bind  any  of  the  judges  when  ihey  came  to  perform  their 
official  duties.  The  truth  is  that  the  judges  of  election  had  to  decide  be- 
tween following  a  plain  requirement  of  the  law  or  disregarding  it.  Som« 
of  them,  under  the  advice  they  had,  concluded  to  obey  the  law,  notwith- 
standing the  decision  of  the  inferior  court  that  it  was  unconstitutional. 

It  is  further  claimed  that  the  numbering  of  the  ballots  in  seven  pre- 
cincts of  the  city  of  Minneapolis  was  done  in  pursuance  of  a  purpose  to 
intimidate  the  workiugmen,  who  are  said  to  have  lived  chiefly  in  these 
precincts.  There  is  no  truth  in  the  statement  that  the  workingmen  re- 
sided in  these  precincts.  The  record  furnishes  no  such  evidence.  It  is 
hardly  proper  to  refer  to  the  fact  that  the  contestant  in  his  desperation 
does  make  such  a  statement  in  his  brief.  But  in  the  argument  before 
the  sub-committee  this  was  emphatically  denied,  and  it  is  still  denied 
on  the  authority  of  persons  residing  in  that  city,  including  the  mayor 
and  others,  who  have  forwarded  affidavits  to  show  that  such  unsupported 


DONNELLY    VS.    WASHBURN.  501 

Btatements  were  wbolly  uiitrue.  One  witness  (Grimshaw),  referred  to 
by  members  of  the  committee,  does  say  that  a  large  number  of  workiiig- 
meu  resided  iu  the  second  ]»reciuct  of  the  fourth  ward,  a  precinct  in 
which  the  ballots  were  numbered;  but  this  witness  utterly  disproves 
the  charge  that  these  workingmen  were  intimidated.  On  the  contrary, 
he  makes  it  quite  certain  that  in  this  precinct  and  ward  the  working- 
men  did  not  want  to  vote  for  Donnelly.  The  vote  stood  in  that  ward, 
according  to  his  statement,  57  for  Donnelly  and  357  for  Washburn.  Here 
is  a  statement  of  this  witness  on  this  subject  iu  full  (page  181): 

A.  I  believe  that  I  have  before  stated  that  I  was  not  acquainted  in  my  entire  ward ; 
neither  am  1 ;  but  will  say  that  in  the  second  precinct,  foni;th  ward,  the  one  in  which 
I  live,  there  was  414  voles  polled  at  the  last  election,  of  which  Ignatius  Donnelly  re- 
ceived 57.  I  believe  I  am  acquainted  with  all  of  these  men — will  not  say  all — and 
know  of  none  that  is  not  a  workingman.  I  am  rather  well  acquainted  in  the  city, 
baving  lived  here  nineteen  years,  and  believe  that  a  large  majority  of  workingmen 
voted  for  W.  D.  Washbnrn. 

It  is  true  that  there  was  great  activity  in  the  city  of  Minneapolis  im- 
mediately prior  to  and  on  election  day.  There  was  undoubtedly  a 
rivalry  between  the  cities  of  Minneapolis  and  Saint  Paul  which  led  to 
an  increav'^ed  vote  doubtless  for  Donnelly  in  the  city  of  Saint  Paul  and 
a  largely  increased  vote  in  the  city  of  Minneapolis  for  Mr.  Washburn. 
Minneajjolis  was  Mr.  Washburn's  home;  he  had  done  much  to  build  it 
up,  to  advance  its  interest,  and  to  provide  work  for  its  inhabitants.  He 
was  a  public-spirited  man,  and  had  a  just  pride  in  his  own  city.  Some 
of  the  contestant's  witnesses  declared  that  the  election  in  the  Congres- 
eional  fight  of  1878  practically  resulted  in  one  issue,  and  that  a  contest 
between  the  rival  cities  of  Saint  Paul  and  Minneapolis.  The  following 
is  a  question  and  answer  which  will  throw  light  on  this  question  (Ste- 
vens, page  108) : 

Q.  Was  not  the  Congressional  question  at  the  last  election  considered  of  greater 
importance  generally  than  any  other  office,  and  did  it  not  cause  more  feeling  among 
the  vot^^rs  ? — A.  Except  upon  a  comparatively  small  number  of  friends  of  candidates 
for  local  officers,  the  Congressional  light,  or  so-called  contest,  for  city  supremacy,  was 
practically  the  only  issue  ;  pi)litical  consideration  apparently  sank  out  of  sight,  the 
rallying  cry  being  "  Vote  for  JFashburn  and  Minneapolis.  Down  icith  Saint  Paul."  The 
battle  soon  became  a  rouf,  and  ultimately  a  panic. 

The  testimony  of  McCarthy  is  to  the  same  effect  (page  24). 

It  is  proper  to  observe  that  the  nomination  of  Donnelly  was  distaste- 
ful to  Democrats,  especially  in  Minneapolis  (page  110). 

The  election  in  Minneapolis  is  clearly  proved  to  have  been  an  orderly 
one  (page  109). 

Men  were  not  discharged,  as  has  been  claimed,  by  their  employers 
because  they  voted  for  Washburn  (118). 

In  the  conduct  of  the  election  on  election  day  Democrats  were  very 
lukewarm  in  Donnelly's  interest  (page  45).  Some  of  the  witnesses  say 
that  Donnelly's  friends  were  afflicted  with  "apathy"  (pages  140-41.) 

The  only  testimony  which  tends  to  prove  that  workingmen  were 
afraid  to  vote  for  Mr.  Donnelly  on  account  of  the  fear  that  they  would 
lose  their  jobs  is  jmrely  hearsay,  and  entitled  to  no  consideration  what- 
ever. Some  of  the  witnesses  testify  that  the  workingmen  did  not  vote 
for  Mr.  Washburn,  but  that  his  majority  came  from  the  citizens  of  the 
city  of  Minneapolis  (page  113). 

Much  has  been  said  about  Mr.  Donnelly's  last  meeting  in  the  city  of 
Minneapolis.  It  is  claimed  that  his  meeting  was  interrupted,  and  in 
that  way  he  was  deprived  of  his  proper  intiuence  upon  the  voters.  It 
appears  that  in  the  meeting  held  by  Donnelly  iu  Minneapolis,  on  No- 
vember 2,  1878,  he  indulged  in  a  personal  tirade  against  Colonel  King, 


502  DIGEST  OF  ELECTION  CASES. 

a  former  member  of  Congress,  and  attacked  his  character  and  reputa- 
tion. This  Mr.  King  resented,  and  advised  Mr.  Donnelly  that  unless  he 
desisted  from  such  allusions  to  him  he  would  expose  him  in  a  way  that 
he  (Donnelly)  would  not  want.  Donnelly  held  his  meeting,  and  no 
further  interruption  took  place  (page  110). 

The  witness  McGurk  says  that  in  this  meeting  Donnelly  succeeded  in 
converting  quite  a  number,  and  that  the  attempt  to  break  uj)  the  meet- 
ing failed.    He  further  testifies  on  this  point  (page  114) : 

Q,  Do  you  not  think  that  this  attempt  was  an  advantage  to  Mr.  Donnelly  instead 
of  a  detriment? — A.  I  think  it  was,  judging  from  the  indignation  expressed  by  the 
people  at  Mr.  King  and  the  party.  5lr.  King  was  supposed  to  be  the  representative 
of  Washburn. 

Q.  Then,  in  your  opinion,  the  election,  so  far  as  it  was  atfected  at  all,  was  so  affected 
in  favor  of  Mr.  Donnelly  by  the  scenes  at  this  meeting  ? — A.  Yes.  • 

All  of  the  alleged  testimony  in  the  record  on  the  subject  of  intimida- 
tion, if,  indeed,  any  of  it  could  be  called  competent  testimony,  is  so 
utterly  shadowy  that  it  does  not  deserve  a  critical  review  here. 

We  should,  in  the  consideration  of  the  charge  of  intimidation,  keep 
in  mind  the  salutary  rule  of  law,  repeatedlj'  affirmed  by  the  House  of 
Representatives,  that  where  it  is  alleged  that  a  large  number  of  persons 
have  been  deterred  from  voting  by  violence  or  intimidation  the  testi- 
mony of  those  persons  should  be  produced,  or  at  least  some  of  them. 
The  opinions  and  impressions  of  others  are  not  sufficient  (McCrary's 
Election  Laws,  430-441 ;  ]!^ orris  vs.  Handley,  42d  Congress). 

The  rule  of  law  universally  recognized  where  elections  are  held  by 
the  people  is,  that  those  who  may  have  voted,  and  yet  did  not  when 
they  could  have  done  so,  are  bound  by  the  result  (McCrary's  Election 
Laws,  sections  445-448*,  10  Minn.,  107). 

The  attempt  on  the  j^art  of  members  of  the  committee  to  work  out 
some  sort  of  demonstration  from  a  comparison  of  the  votes  cast  on  dif- 
ferent years  in  the  city  of  Minneapolis  is  exceedingly  far-fetched,  and 
hardly  deserves  notice.  To  show  the  folly  of  attempting  to  demonstrate 
anything  from  a  compariscm  of  votes  on  different  years  in  the  city  of 
Minneapolis  we  insert  a  statement  showing  the  vote  on  dift'erent  years 
for  different  candidates.  Republican  and  Democratic,  in  both  of  the 
cities  of  Minneapolis  and  Saint  Paul.  It  will  be  observed  from  this 
statement  that  with  a  very  light  vote  in  1879  the  Republican  candidate 
for  governor  received  almost  as  great  a  majority  as  Mr.  Washburn  in 
the  city  of  Minneapolis,  and  the  Democratic  candidate  for  governor  re- 
ceived only  about  one-third  of  Donnelly's  vote  in  that  city  in  1878.  It 
will  also  be  observed  that  the  vote  iu  the  city  of  Saint  Paul  "fluctuated 
in  the  years  mentioned  in  the  statement  quite  as  much  as  in  the  city  of 
Minneapolis.    The  following  is  the  statement : 


DONNELLY    VS.    WASHBURN. 


503 


'Statenient  of  the  vote  iMSt  in  the  cities  of  Minneapolis  and  Saint  Paul   for  certain  can- 
didates, and  in  the  years  below  speeified. 


Plllsbury,  governor.  Republican . 
Buel,  governor,  Democrat 


1876. 


Hayes,  President,  Republican 
'Tilden,  President,  Democrat  .. 

St'ewart,  Congress,  Republican 

McXair.  Congress,  Democrat.. 
(■Stewart,  a  resident  of  Saint  Paul,  and  McXair,  resident  of  Minneapolis.) 
Legi.slative  vot«  in  Minneapolis,    same  year,  was  Republican,  4,214 
Democrat,  2,929:  in  Saint  Paul,  Republican,  2.113:  Democrat,  2,979. 
1877. 

Pillsbury.  governor,  Republican ; 

Banning,  governor.  Democrat 

Pillsbury  wa-s  a  resident  of  Minneapolis,  and  Banning  of  Saint  Paul. 
A  very  light  vote  in  botJi  cities. 

1878. 

Washburn.  Congress,  Republican 

Donnelly,  ('ongre-ss.  Democrat     

Same  year  Democratic  majority  for  supreme  judge  in  Saint  Paul  was  only 

On  State  ticket  (auditor) 

County  ticket  (sheritt') 

Same  year  Republican  majority  in  Minneapolis  on  State  ticket  waa 

Supreme  judge '. 

Count V  ticket •- 

1879. 

Pills'bury,  governor.  Republican 

Ri(!e,  governor.  Democrat 

.Same  year  Democratic  majority  in  .Saint  Paul  on  county  ticket  was 

Same  year  Republican  majority  in  Minneapolis  on  county  ticket  was. . . 


Minneapolia. 


.■5,652 
1,041 

4,149 
3,229 
3,412 
3,362 


3,245 
1,569 


5,033 
1,585 


2,161 
2,722 
2,341 

2,814 
504 


1,187 


Saint  Paul. 


2,  459 
3,116 

2,566 
3,553 
2,658 
3,101 


2,867 
3,078 


1,378 

3,770 

897 

931 

288 


1,007 

2,922 

553 


The  following:  statement  shows  the  vote  for  governor  in  1879  in  the 
election  in  the  counties  composing  the  third  Congressional  district  of 
Minnesota.    It  may  be  of  value  by  way  of  comparison. 

Third  Congressional  district,  vote  of  1879  in  said  district. 


County. 


Aitkin  County. . .• 

Auoka  County 

Becker  County 

Ben  ton  County    

Big  Stone  County 

Carlton  Couuty 

Chicago  County 

Clay  County 

Crow  Wing  County . . 

Douglas  County 

Grant  Couuty 

Hennepin  County 

Isanti  County 

Kanabec  County 

Kittson  Coiinty 

Lac-qui-parle  County 

Lake  County 

Meeker  County 

Hille  Lacs  County... 


Rice. 


1 
266 
133 
279 

41 

64 
203 

85 
196 
133 

44 


96 
17 
11 
363 
56 


Pillsbury.  M 


14 

371 
653 
191 
128 

51 
636 
340 
29.i 
643 
389 
3,744 
327 

79 
138 
591 
4 
870 
106 


County. 


Morrison  County 

Otter  Tail  County 

Pine  County 

Polk  County 

Pope  County 

Ramsey  Coiinty 

Saint  Louis  County 

Sherburne  County 

Stearns  County 

Stevens  County 

Todd  County 

Traverse  County 

Wadena  County 

Washington  County 

Wilkin  County 

Wright  County 

Yellow  Medicine  County  , 

Totel 


Bice. 


492 

653 

105 

338 

56 

3,318 

177 

166 

2,270 

403 

350 

3 

57 

1,472 

99 

1,328 

87 


Pillsbury. 


328 

1,517 

61 

730 

621 

1,098 
213 
319 
913 
374 
573 
18 
321 

1,183 
198 

1,347 
722 


14,425 


20,106 


SUPPLEMENTAL   RETURNS. 


Through  an  error  of  the  secretary  of  the  State  of  Minnesota,  in  not 
furnishing  the  proper  blanks  to  the  election  officers,  there  were  a  num- 
ber of  instances  where  the  votes  polled  for  candidates  for  Congress  were 
not  returned  and  counted  by  the  county  canvassing  boards  (page  320). 
The  omission  to  make  full  returns  occurred  in   Minneapolis,  and  ia 


604  DIGEST  OF  ELECTION  CASES. 

Stearns,  Morrison,  and  Douglas  Counties.  The  contestee  does  not  dis- 
pute the  right  of  the  contestant  to  count  the  votes  cast  in  the  counties 
of  Stearns  and  Morrison,  in  each  of  which  counties  the  contestant  re- 
ceived a  majority.  Nor  do  we  understand  that  any  serious  objection- 
can  be  made  to  counting  the  vote  in  Leaf  Valley  precinct,  in  Donghis^ 
County  (page  270)  where  the  contestant  claims  to  have  received  all  the 
votes. 

Supplemental  returns  were  niade  on  the  12th  day  of  November,  1878,. 
by  the  election  officers  of  the  precincts  in  the  city  of  Miiineapolis,  where 
they  had  omitted  to  make  the  returns  for  member  of  Congress  imme- 
diately after  the  election.  These  precincts  were  first  ])recinct,  first 
ward ;  second  precinct,  second  ward ;  and  third  precinct,  fourth  ward. 
The  majority  for  Washburn  in  these  precincts  was  714  (pages  348,349.) 
We  see  no  valid  objection  to  these  supplemental  returns.  They  were 
made  by  the  proper  officers  and  within  the  time  required  by  law  to  can- 
vass and  make  returns.  The  sui)i)lemental  returns  from  the  three  pre- 
cincts of  Minneapolis  were  dulj'  canvassed  by  the  county  canvassing 
board  (pages  348-351) ;  but  it  is  hardly  necessary  to  waste  time  in  con- 
sidering the  validity  of  these  supi)lemental  returns.  They  were  put  in 
evidence  by  the  contestant  (pages  5S-G3).  The  testimony  clearly  and 
unraistakaljly,  independent  of  the  supi)leraeutal  returns,  shows  the  vote 
as  cast  for  member  of  Congress  in  these  precincts.  It  must  be  observed 
that  all  the  witnesses  who  testified  on  the  subject  of  the  vote  in  these 
precincts  agree  that  the  vote  for  member  of  Congress  was  duly  can- 
vassed, though  not  returned. 

Asa  li.  Cauip,  one  of  the  judges  of  the  election  of  the  second  precinct 
of  the  second  ward  in  the  city  of  Minneapolis,  testifies  to  the  vote  cast 
for  Congress  in  that  ward  (page  322).  And  he  testifies  also  that  the 
supplemental  return,  as  made,  is  true  in  all  respects  (page  323). 

Isaac  McXair,  one  of  the  judges  of  the  election  in  the  same  precinct 
and  ward,  testifies  that  the  vote  was  canvassed  hy  the  judges  of  election 
for  member  of  Congress ;  and  he  also  gives  the  vote  from  recollection 
and  memorandum,  as  it  appears  by  the  supplemental  return  (pages- 
323, 324). 

Thomas  F.  Andrews,  another  one  of  the  judges  in  the  same  precinct,, 
swears  to  the  same  state  of  facts  (pages  325, 326). 

John  M.  Williams,  one  of  the  clerks  of  election  of  the  second  precinct 
of  the  second  ward,  testifies  to  the  same  facts  stated  bv  the  judges  of 
election  (pages  326, 327). 

Charles  Thielen,  a  judge  of  the  election  of  the  first  precinct  of  the 
first  ward  of  the  city  of  Minneapolis,  testifies  to  the  canvass  of  the  votes 
In  that  precinct  and  to  the  correctness  of  the  supplemental  return  (pages 
327,  328). 

John  Thielen,  another  one  of  the  judges  of  election  for  the  first  pre- 
cinct of  the  first  ward,  establishes  the  same  fact  (pages  328,  329). 

Michael  Lyons,  the  other  judge  of  the  election  in  the  precinct  and 
ward  just  named,  is  equally  clear  in  establishing  the  fact  that  the  sup- 
plemental return  made  for  that  precinct  and  ward  was  correct  in  giving 
the  vote  for  member  of  Congress  (pages  329-332). 

Allen  Hill,  one  of  the  judges  of  election  in  the  third  precinct  of  the 
fourth  ward,  testifies  that  the  vote  for  member  of  Congress  was  can- 
vassed, and,  by  reason  of  a  deficiency  in  the  number  of  blanks  furnished, 
was  neglected  to  be  returned.  But  he  testifies  to  the  vote  of  that 
precinct,  and  that  it  corresponds  with  the  supplemental  return  (pages 
332-335). 


DONNELLY    VS.    WASHBURN.  50& 

Frederick  Paiue,  one  of  the  clerks  of  the  election  in  the  third  precicnt 
of  the  fourth  ward,  te.stified  to  the  canvassing  of  the  vote  and  the  ascer- 
tainment of  the  result  as  to  member  of  Congress.  He  gives  the  vote  in 
this  precinct  for  Washburn,  506 ;  Donnelly,  83  ;  Stewart,  1 ;  and  says- 
that  19  ballots  contained  no  vote  for  member  of  Congress.  He  says^ 
also,  that  this  vote  was  announced  on  the  night  of  the  election  pub- 
licly, and  that  it  corresponds  with  the  supplemental  return  made  by 
the  officers  of  the  election  on  the  12th  day  of  November,  1878  (pages 
335-330).  The  i)apers  on  the  following  morning  after  the  election,  to 
wit,  November  G,  1878,  offered  in  evidence  in  this  case,  give  the  vote  of 
this  precinct  and  ward,  as  well  as  of  others,  as  appears  by  the  sup- 
plemental return  (page  352).  One  at  least  of  these  papers,  the  Saint 
Paul  Globe,  was  published  in  the  interest  of  Mr.  Donnelly  (page  338). 
The  witness  Paine  makes  it  certain  that  the  vote  was  announced*  as 
soon  as  canvassed  b^'  the  judges  of  election,  and  was  taken  by  the 
reporters  from  the  figures  given  as  the  result  of  the  election  in  this- 
precinct. 

William  Cheney,  another  judge  of  the  election  in  the  third  precinct 
of  the  fourth  ward,  also  gives  the  result  of  the  canvass  and  the  election 
in  his  precinct ;  and  he  establishes  the  fact  that  the  supplemental  re- 
turns for  his  precinct  were  correct  (pages  338-342). 

Daniel  Bassett,  a  Democrat,  and  one  of  the  judges  of  election' in  the^ 
third  precinct  of  the  fourth  ward,  also  testifies  to  the  correctness  of  the 
vote  returned  for  members  of  Congress  in  his  precinct,  though  his 
memory  has  to  be  refreshed  by  exhibiting  to  him  an  original  paper  con- 
taining a  memorandum  of  votes,  kept  at  the  time  the  canvass  was 
made  in  his  precinct.  The  supplemental  returns  made  by  the  judges 
of  election  will  also  be  found  in  the  record  as  offered  by  contestee  (pages 
348-350). 

The  only  person  who  makes  any  question  about  the  correctness  of  the 
vote  in  these  three  precincts  is  John  B.  Bottineau,  who  was  a  clerk  of 
the  election  in  the  third  precinct  of  the  fourth  ward.  He  made  a  pro- 
test as  to  his  precinct  against  the  supplemental  return  made  by  the 
judges  of  the  election  and  the  other  clerk,  on  the  ground,  as  it  appears 
by  his  i)rotest,  that  he  himself  kept  a  memorandum  (not  a  tally-sheet)^ 
which  he  is  not  willing  to  say  was  honestly  kept,  but  which  he  says 
showed  the  vote  in  this  precinct  to  have  been,  for  Washburn  336,  and 
for  Donnelly  313  (page  350). 

Some  respect  might  be  shown  to  this  protest  (although  there  was  na 
authority  of  law  for  making  it)  if  the  man  who  signed  it  was  himself 
willing  to  t^ay  that  his  own  memorandum  was  true.  Even  in  his  protest 
he  is  careful  not  to  say  that  the  vote  for  Donnelly  and  Washburn  stated 
on  his  mem  )randum  was  the  correct  vote  receiv^ed  by  them  at  the  elec- 
tion, but  when  he  is  put  to  the  test  of  swearing  to  it  he  utterly  fails  ta 
say  that  it  does  give  the  correct  vote.  It  must  be  noted  that  the  sup- 
plemental return  in  this  case  was  signed  by  Daniel  Bassett,  the  Demo- 
cratic judge  of  the  precinct  and  a  partisan  of  Mr.  Donnelly.  Whett 
Mr.  Boitioeau  was  asked,  in  his  examination  by  the  contestant,  to  give 
the  maiine:-  in  which  the  count  and  canvass  of  the  ballots  were  made, 
and  state  any  discrepancies  in  the  different  tallies  made  by  the  judges 
and  clerks  during  the  count  and  canvass,  he  had  recourse  to  his  own 
memorandum  kept  at  the  time.  The  memorandum  this  witness  refers 
to  was  not  the  tally  sheet,  but  a  mere  memorandum  kept  by  him,  on 
which  he  put  down  or  pretended  to  put  down  figures,  at  different  times 
as  the  canvass  proceeded,  indicating  the  vote  as  cast  for  members  of 
Congress.    An  inspection  of  a  printed  copy  of  this  memorandum  (page 


506  DIGEST    OF    ELECTION    CASES. 

281)  and  of  the  original  in  evidence  will  enable  any  person  tx)  see  that  this 
witness,  either  corruptly  or  honestly,  put  down  the  figures  in  such  way 
as  to  show  that  Donnelly  received  230  votes  more  than  the  tally-sheet 
shows  he  received,  and  which  the  judges  and  the  other  clerk  of  the  elec- 
tion make  clear  was  the  true  vote.  When  put  to  the  test  this  witness 
confesses  that  he  made  an  error  in  keeping  his  memorandum  (page  277). 
On  the  night  of  the  day  of  election,  when  the  canvass  was  made,  he  did 
not  even  pretend  to  claim  that  there  was  any  discrepancy  between  the  vote 
as  kept  by  the  other  officers  of  election  and  himself  (page  277).  He  was 
asked  how  it  was  possible  for  a  difference  of  two  hundred  in  the  vote  for 
Donnelly  to  exist  and  he  not  know  it  at  that  time,  to  which  he  answers: 

It  is  either  a  mistake  of  one  of  us,  and  perhaps  a  mistake  of  both  of  us.  I  am  coa- 
fid#Qt  we  were  both  mistaken  (page  277). 

We  give  in  full  the  closing  part  of  this  witness's  testimony,  in  order 
to  make  it  appear  that  no  reliance  is  to  be  i^laced  upon  his  pretended 
protest.  It  will  be  observed  that  he  says, ''  I  cannot  say  that  I  believe 
it  (referring  to  Exhibit  C,  containing  a  true  showing  of  Donnelly's  vote), 
nor  can  I  say  that  I  disbelieve  it"  (page  278). 

Q.  From  your  intimate  knowledge  of  the  politics  of  this  county,  as  before  stated, 
do  you  believe  Exhibit  C  contains  a  true  showing  of  Donnelly's  vote  ? — A.  I  cannot 
answer  it.  At  the  time  I  sat  it  down  I  believed  it  to  be  the  actual  vote  of  Donnelly. 
I  cannot  say  that  I  believe  it  now,  nor  can  I  say  that  I  disbelieve  it. 

Q.  When'you  swore  to  Exhibit  D  did  you  believe  that  Donnelly  had  received  the 
number  of  votes  set  opposite  his  name  in  Exhibit  C  f — A.  I  don't  know  whether  I  did  or 
not;  I  expected  the  two  tally-sheets  would  correspond  as  they  did  in  relation  to  other 
candidates,  which  they  did  not. 

Q.  Were  you  not  surprised  at  Donnelly's  vote  on  the  night  of  the  election  when 
you  made  this  Exhibit  C,  showing  that  he  received  313  votes? — A.  I  was  surprised 
that  he  had  received  so  small  a  vote,  according  to  the  enthusiasm  in  his  favor  that  I 
had  seen. 

Q.  Did  you  make  the  figures  "200"  and  "30''  set  ojjposite  Donelly's  name,  in  Ex- 
hibit C,  as  the  votes  were  read  out  on  election  night  f — A.  The  votes  were  not  read 
out  on  election  night  by  eitherof  the  judges  or  clerks  in  making  the  canvass;  I  placed 
those  figures  at  the  same  time  as  tlie  other  tally -sheets,  as  they  were  announced  as 
found  by  each,  judges  aud  clerks. 

NoTK. — This  being  the  last  witness  examined  on  the  direct,  in  Minneapolis,  con- 
testant's counsel  desires  to  say,  may  the  Lord  have  mercy  on  the  hindermost  in  the 
final  outcome.    Amen. 

The  objection  to  these  supplemental  returns  is  so  purely  technical 
that  we  hardly  think  it  important  to  give  the  matter  the  consideration 
already  given  to  it  in  this  report. 

Some  complaint  is  made  that  the  contestee  did  not  have  the  ballots 
counted  in  the  ballot-boxes  and  offer  proof  of  the  result  of  such  count 
in  this  contest ;  and  certain  members  of  the  committee  think  this  would 
have  been  the  best  and  highest  evidence  of  how  the  vote  stood.  The 
contestee  has  given  the  vote  as  cast  in  these  three  precincts,  as  found 
by  the  officers  who  held  the  election,  on  an  actual  count  of  the  ballots 
made  by  them  as  soon  as  the  polls  closed.  It  is  hard  to  conceive  how 
it  is  possible  for  a  new  count  of  the  ballots  by  unauthorized  persons 
long  after  the  election  would  constitute  higher  evidence  of  the  true  state 
of  the  vote  in  these  precincts  than  we  have  already  given.  It  would  be 
exactly  the  same  character  of  evidence,  but  given  by  persons  not  au- 
thorized under  the  law  to  make  the  count. 

UNORGANIZED  COUNTIES. 

It  was  stoutly  claimed  by  the  contestant  that  the  votes  cast  iu  the 
several  counties  of  the  district  should  be  excluded  wholly,  oh  the  ground 
that  they  were  in  unorganized  counties.     Some  dispute  arose  between 


DONNELLY    V.s.    WASHBURN.  507 

counsel  as  to  what  coiustitiited  aa  unorganized  county ;  and  there  was 
some  diftereuce  between  counsel  as  to  what  particular  counties  were 
organized  by  express  j)rovision  of  the  statutes  of  the  State  of  Minnesota 
and  what  counties  were  not  organized.  It  is  not  at  all  important,  iu 
the  view  we  take,  whether  these  counties  were  organized  or  not,  because 
it  is  perfectly  clear,  under  the  statutes  of  Minnesota,  that  for  the  pur- 
pose of  voting  for  State  otticers,  for  members  of  the  legislature,  and 
for  members  of  Congress,  voters  living  in  unorganized  counties  are  as 
much  entitled  to  vote  as  those  who  live  in  organized  counties.  It  is 
understood  that  the  committee  is  unanimous  in  holding  that  the  vote  of 
no  county  in  the  district  should  be  rejected  on  the  ground  that  it  was 
an  unorganized  county,  and  we  shall  give  this  subject  no  further  con- 
sideration, 

ISANTI  COUNTY. 

The  contestant  attacks  the  entire  vote  of  Isanti  County.  The  re- 
turned vote  from  that  county  w  as  538  for  Washburn,  137  for  Donnelly, 
scattering  2.  The  contestant's  objection  to  counting  the  vote  returned 
in  the  county  of  Isanti  is  set  forth  iu  paragiaph  8  of  his  notice  of  con- 
test.   It  is  as  follows  : 

The  votes  alleged,  to  have  beeu  cast  for  you  at  said  election  in  the  county  of  Isauti, 
iu  said  district,  were  not  cast,  or  counted  for  you,  or  returned,  or  canvassed,  as  pro- 
vided by  law. 

The  true  construction  of  this  part  of  the  notice  of  the  contestant  is 
that  he  objects,  not  to  the  vote  because  it  was  not  cast,  nor  because  it 
was  not  counted,  nor  because  it  was  not  returned,  nor  because  it  was 
not  canvassed,  but  because  it  was  not  cast,  counted,  returned,  or  can- 
vassed as  provided  by  law.  There  is  nothing  in  the  evidence  offered  by  the 
contestant  tending  to  show  that  the  vote  of  this  county  was  not  cast  as 
returned,  was  not  counted  as  returned,  or  was  not  canvassed  as  returned, 
except  what  appears  on  pages  08  and  69  of  the  record.  There  it  is  made 
to  appear  that  there  was  a  complete  abstract  of  the  vote  made  as  cast  in 
the  several  election  districts  of  the  county,  and  duly  certified  to  by  the 
iiuditor  of  the  county  and  district,  whose  certificate  is  attested  by  one 
A.  B.O'Dell,  who  designates  himself  judge  of  probate,  and  Jonas  Burch, 
who  signs  himself  as  justice  of  the  peace.  Had  O'Dell  signed  and 
attested  the  auditor's  certificate  as  justice  of  the  peace  there  would 
have  been  no  objection  to  counting  this  vote.  This  is  a  mere  irregularity, 
which  does  not  vitiate  tlie  returns  ;  and  if  it  did,  the  vote  is  not  to  be 
rejected  unless  the  contestant  shows  it  to  be  illegal.  (McCrary's  Elec- 
tion Laws,  section  302,  and  cases  there  cited). 

The  statute  of  Minnesota  (Bissel's  Revision,  vol.  1,  p.  172,  sec.  28) 
provides : 

The  county  auditor  and  two  justices  of  the  peace  of  his  county,  by  him  selected, 
•constitute  the  county  cauvassing  board,  and  on  or  before  the  tenth  day  after  the  elec- 
tion said  board  shall  proceed  to  open  and  publicly  canvass  the  several  returns  made 
to  the  auditor's  office. 

Section  40  of  the  same  Revision  of  the  Statutes  (page  176)  is  as  fol- 
lows : 

The  abstracts  of  the  votes  for  members  of  Congress  and  electors  of  President  and 
Vice-President  shall  be  ma<le  on  one  sheet,  and,  being  certified  and  signed  iu  the  same 
manner  as  in  case  of  abstracts  of  votes  for  county  officers,  shall  be  deposited  in  the 
said  county  auditor's  office,  and  a  copy  thereof,  certified  as  aforesaid,  shall  be  inclosed, 
•directed  to  the  secretary  of  state,  and  indorsed  on  the  outside  of  the  envelope  with 
these  words:  "Abstract  of  votes  for  (naming  the  officers)  returned  to  the  auditor's 


508  DIGEST    OF    ELECTION    CASES. 

office  of  (inserting  the  name  of  the  county)  county,"  and  the  said  auditor's  signature  ; 
and  the  said  auditor  shall  forward  the  same  to  the  secretary  of  state  within  eleven 
days  after  such  election. 

The  statutes  of  Minnesota  require  nothing  of  the  county  canvassing^ 
board  but  to  compile  the  returns  made  to  the  auditor  of  the  county, 
and  the  auditor  to  certify  to  tlie  same.  The  justices  of  the  peace  se- 
lected by  the  auditor  to  constitute  with  him  the  county  canvassing 
board  are  not  required  to  do  anything  more  toward  certlfyiug  to  the 
truth  of  the  abstract  than  to  attest  the  signatures  of  the  auditor.  The 
statutes  of  Minnesota  j)rovide  a  form  for  the  abstract  and  for  the  cer- 
tificate, and  in  that  form  the  two  justices  of  the  peace  sign  their  names 
under  the  word  '•'' attesV  to  the  left  of  the  signature  of  the  auditor.  (See 
Bissel's  Statutes,  i)age  174:  also  Young's  Minnesota  Statutes,  1878,  page 
46.)  The  real  jnirpose  of  selecting  justices  of  the  peace  as  a  part  of  the 
county  canvassing  board  and  to  assist  the  auditor  of  the  county  is  doubt- 
less that  they  shall  be  present  to  prevent  the  auditor  in  making  up  the 
abstract  Qf  votes,  if  so  disposed,  from  committing  any  fraud.  The  board 
Las  no  authority  either  to  accept  or  reject  any  returns  made  to  the 
county  auditors,  in  their  estimate  of  the  votes,  for  any  informality  in 
holding  an  election  or  making  returns  thereof.  The  following  is  the 
law  of  the  State  on  this  subject : 

No  election  returns  shall  he  refused  by  any  auditor  for  the  reason  that  the  same  are 
returned,  or  delivered  to  him,  in  any  other  than  the  maunes  directed  herein  ;  nor  shall 
the  canvassing  board  of  the  county  refuse  to  include  any  returns  iu  their  estimate  of 
the  vote  for  any  informality  in  holding  any  election,  or  in  making  any  returns  thereof, 
but  all  returns  shall  be  received  and  the  votes  canvassed  by  such  canvassing  board 
and  included  in  the  abstracts;  provided  there  is  a  substantial  compliance  with  the 
provisions  of  this  chapter.     (Sec.  37,  Bissel's  Statutes,  p.  175). 

For  an  authoritative  construction  of  this  section  see  18  Minn.,  351. 

The  final  canvass  of  the  vote  for  a  member  of  the  House  of  Rejire- 
sentatives  is  made  by  the  governor  and  secretary  of  state,  in  the  pres- 
ence of  the  auditor  of  state,  the  attorney-general,  and  one  or  more  judges 
of  the  supreme  court.  We  quote  from  section  41  of  Bissel's  Statutes, 
page  176,  as  follows : 

Within  twenty  days  after  said  election  the  governor  and  secretary  of  state,  in  the 
presence  of  the  auditor  of  state,  the  attorney-general,  and  one  or  more  judges  of  the 
enpreme  court,  shall  open  the  returns,  made  to  the  secretary  of  state,  for  members 
of  Congress  and  for  electors  of  President  and  Vice-President  of  the  United  States^ 
and  shall  forthwith  proceed  to  ascertain  the  number  of  votes  given  to  the  different 
persons  for  said  ofiSces,  ^nd  the  persons  having  the  highest  number  of  votes  shall  be 
considered  duly  elected. 

It  is  thus  made  perfectly  clear  that  it  is  the  final  action  of  the  g 
ernor  and  secretary  of  state,  who  have  before  them  a  complete  abstr 
of  the  votes  of  each  county  of  a  Congressional  district,  which  determine* 
the  election  of  the  member  of  Congress.  The  presence  of  the  auditor 
of  state,  the  attorney-general,  and  one  or  more  judges  of  the  supreme 
court  is  required  to  insure  perfect  fairness  in  this  canvass  and  entire 
freedom  from  fraud ;  and,  possibly,  they  are  required  to  be  present  to 
aid  the  governor  and  secretary  of  state  in  the  canvass  iu  case  questions 
should  arise  iu  relation  to  the  canvass.  The  contestant  desires  that  an 
entire  count.y  should  be  disfranchised,  not  because  it  is  made  to  ai)i)eJi.r 
by  the  final  canvass  of  the  vote  of  this  county  that  it  was  not  proi)erly 
cast,  but  because  one  man  attests  the  certificate  of  the  auditor  who  does 
not  sign  himselfa  justice  of  the  peace.  It  is  not  proved  that  the  actual 
canvass  of  the  vote  by  the  county  canvassing  board  in  this  county  was 
not  made  by  the  auditor  and  two  i)roperly  selected  justices  of  the  peace. 
Indeed  it  does  not  appear  in  the  case  that  the  attesting  witness,  A.  B. 


DONNELLY    VS.    WASHBUKN.  509 

O'Dell,  who  signed  himself  as  judge  of  probate,  was  not  in  facta  jus- 
tice of  the  peace.  The  most  that  can  be  said  for  this  certificate  to  the 
abstract  of  the  vote  is  that  it  is  informal,  and  thisthe  statute  of  Min- 
nesota, in  express  terms,  provides  shall  not  be  a  good  ground  for  set- 
ting it  aside.  We  quote  from  the  section  of  the  statute  which  prescribes 
the  form  of  an  abstract  of  votes  for  count}'  canvassers  : 

The  tbrowing  is  the  form  of  the  abstract  of  votes  provided  for  herein  to  be  used  by 
all  county  canvassinj:;  boards,  but  uo  election  shall  be  set  aside  for  the  want  of  form 
in  the  abstracts,  i)rovided  they  contain  the  substance.  (Section  33,  Bissel's  Statutes, 
page  173. ) 

See  also  form  of  abstract  and  certificate.  Young's  Minn.  Stat.,  1878, 
page  40. 

This  single  item  of  evidence  against  counting  the  vote  of  Isanti 
County  is  that  the  auditor's  certificate  has  not  been  duly  attested.  It 
cannot  be  said  that  the  abstract  of  the  vote  was  not  canvassed  by  the 
proper  officers  and  in  accordance  with  the  law-  of  the  State.  But  if  it 
eyen  appeared  that  but  one  justice  of  the  peace  acted  with  the  county 
auditor  in  making  up  the  abstract  and  canvassing  the  vote  of  the 
county  there  would  be  no  legal  objection  to  it  under  the  laws  of  that 
State.  Subdivision  3,  section  1,  title  1,  chapter  3,  Bissel's  Statutes, 
page  118,  reads  as  follows  : 

Words  purporting  to  give  a  joint  authority  to  three  or  more  public  officers,  or  other 
persons,  shall  be  construed  as  giving  such  authority  to  a  nifyority  of  such  officers  or 
persons. 

We  do  not  think  it  is  even  important  to  rely  upon  this  excellent  pro- 
vision of  the  statute  of  Minnesota.  But  if  there  should  be  any  doubt 
about  it,  the  general  principle  of  this  statute  makes  it  clear.  It  has 
frequently  been  held,  in  the  absence  of  such  a  statute  as  we  have  just 
<Iuoted,  that  where  a  certificate  is  by  law  required  to  be  made  by  aboard 
of  officers  composed  of  three  or  more  persons,  it  is  sufficient  for  a  ma- 
jority of  such  board  to  join  in  such  certificate.  (See  McCrary's  Law  of 
Elections,  .section  158,  where  the  subject  is  discussed  ;  also  Niblack  vs. 
Walls,  Forty  second  Congress,  where  it  was  held  that  if  less  than  a 
majority  sign  the  certificate  is  not  good.)  In  the  case  of  Niblack  vs. 
Walls  the  committee  say  : 

The  committee  are  of  the  opinion  that  where  the  law  requires  the  certificate  to  be 
made  by  three  officers,  a  majority  at  least  must  sign  to  make  the  certificate  valid. 

Much  stress  is  laid  upon  the  fact  that  one  of  the  attesting  witnesses 
to  the  certificate  of  the  abstract  of  votes  was  a  mere  intruder.  While 
it  may  be  true  that  where  an  intruder  into  a  board,  which  had  a  duty  to 
perform  requiring  some  judicial  action,  and  it  appeared  that  such  intruder 
participated  in  the  determinations  of  such  board,  and  was  allowed  a 
voice  in  the  deliberations  of  the  board,  would  render  the  acts  of  such 
board  invalid, yet,  as  in  this  case,  where  the  alleged  intruder  is  not  shown 
to  have  performed  any  duty,  or  attempted  to  perform  any  duty,  other 
than  to  sign  his  name  in  the  place  of  a  justice  of  the  peace,  as  a  mere 
witness  to  the  certificate  of  an  officer,  attached  to  an  abstract  of  votes 
not  shown  to  have  been  illegal  or  im^jroperly  made,  it  is  hard  to  con- 
ceive how  such  signature  could  invalidate  the  acts  of  the  other  officers, 
who  had  legal  authority  to  act. 

The  case  of  Delano  vs.  Morgan  (2  Bartlett,  page  171)  is  said  to  be  in 
point,  and  to  sustain  the  claim  of  the  contestant  that  this  certificate  to 
the  abstract  of  votes  is  not  good,  and  that  the  whole  vote  should  be 
thrown  out.  There  is  no  possible  analogy  between  the  two  cases.  We 
are  not  prepared  to  say  that  the  law  of  that  case  is  right.     The  question 


r)10  DIGEST    OF    ELECTION   CASES. 

there  was  whether  two  persons,  wha  were  the  judges  of  the  election  in 
Pike  Township,  Knox  Connty,  Ohio,  could  legally  hold  an  election  while 
sitting  with  a  third^ierson,  who  acted  as  a  judge,  who  had  not  the  quali- 
fications of  an  elector,  and  under  the  law  of  Congress  and  the  consti- 
tution and  laws  of  Ohio  was  not  comjietent,  and  was  ineligible  to  act  as 
a  judge  of  election.  By  virtue  of  the  statute  of  the  State  of  Ohio  in 
force  at  that  time  three  persons,  and  not  two  in  any  case,  were  re- 
quired to  act  as  judges  of  election,  each  of  whom  was  required  to  have 
the  qualifications  of  electors.  These  judges  of  election  were  not  canvass- 
ing officers  in  any  sense,  but  it  was  their  duty  to  pass  ujion  the  quali- 
fications of  ea<;h  elector  at  the  polls  during  the  time  the  vote  was  being 
cast. 

From  a  reading  of  the  report  in  the  case  of  Delano  vs.  Morgan  it  i* 
not  at  all  clear  that  if  there  had  been  two  competent  judges  and  no  sup- 
posed intruder  in  the  board  the  vote  of  this  township  would  have  been 
thrown  out.  There  are  members  of  this  committee  who  have  very  de- 
cided views  against  the  correctness  of  that  decision.  They  think  that^ 
notwithstanding  a  person  acted  in  the  capacity  of  a  judge  of  the  election 
who  had  not  the  legal  qualification  to  serve  as  such  judge  of  election, 
yet  if  he  did  act  he  was  de  facto  a  judge  of  the  election,  and  the  whole 
vote  of  the  township  should  not  have  been  rejected  and  the  voters  dis- 
franchised without  proof  that  the  board  had  acted  fraudulently  or 
wrongfully  in  the  conduct  of  the  election. 

The  views  of  the  minority  of  the  committee,  as  presented  by  Hon. 
M.  C.  Kerr,  ot  Indiana,  in  the  Delano-Morgan  case,  seem  to  be  unan- 
swerable.    (Contested  Election  Cases,  1805  to  1871,  page  183.) 

The  case  of  Howard  vs.  Cooper  (1  Bartlett,  282)  is  supposed  to  sus- 
tain the  claim  tliat  the  return  of  the  vote  given  in  Isanti  County,  as  it 
appears  in  the  record,  is  not  a  valid  one.  That  case  was  one  where  there 
were  but  two  members  of  the  board  of  inspectors  to  receive  the  votes, 
where  the  law  required  in  express  terms  that  there  should  be  three.  In 
the  absence  of  one  of  the  three  members  of  the  board  of  inspectors  in 
the  State  of  Michigan,  where  this  case  arose,  the  bystanders  were  re- 
quired to  elect  an  inspector  to  fill  the  vacancy,  and  this  was  not  done. 
Under  the  state  of  the  law  in  Michigan  at  that  time  it  was  not  possible 
to  have  a  board  of  inspectors  constituted  of  a  less  number  than  three. 
The  committee  in  the  Michigan  case  say : 

Your  committee  have  rejected  the  vote  of  the  township  of  Van  Bnren.  The  law 
requires  that  the  board  of  inspectors  shall  be  composed  of  three  persons  in  number. 
The  proof  is  clear  that  there  were  but  two.  As  there  was  no  board  of  inspectors  known 
to  the  law  your  committee  see  no  way  by  which  any  legal  effect  can  btt  given  to  the 
returned  vote.  They  have,  therefore,  deducted  it.  although  it  can  in  no  way  affect 
the  decision  in  this  case,  wliether  it  be  deducted  or  retained. 

The  above  is  all  the  report  contains  on  the  subject  of  rejecting  the 
vote  of  Van  Buren  County.  It  is  made  perfectly  clear  that  the  commit- 
tee in  that  case  put  their  decision  on  the  ground  that  a  board  of  inspect- 
ors consisting  of  but  two  persons  only  could  not,  under  the  laws  of 
Michigan,  legally  act.  We  quote  from  the  remarks  of  Mr.  Dawes,  a 
member  of  that  committee,  while  the  case  was  under  discussion  in  the 
House : 

In  the  town  of  Van  Buren,  in  that  county,  there  were  but  two  inspectors  of  elec- 
tion, although  the  law  requires  three.  The  town  clerk  is  ex  officio  one  of  the  inspect- 
ors of  election.  In  that  township  the  town  clerk  was  not  present  during  any  part  of 
the  day  except  to  cast  his  vote  aud  go  away.  The  law  requires  that  in  the  absence 
of  any  one  of  the  inspectors  apjiointed,  one  or  more  shall  be  chosen  from  the  by- 
standers to  take  his  place,  who  sball  continue  to  act  as  inspector.  The  town  clerk  is 
also  required  to  be  one  of  the  clerks  of  election  to  record  the  votes. 


DONNELLY    VS.    WASHBURN.  511 

But  neither  of  these  cases  can  be  said  to  have  any  sort  of  analogy  to 
the  one  under  consideration,  where  the  sole  question  is  whether  the  fail- 
ure to  have  two  attesting  justices  of  the  j)eace  to  a  certificate  attached 
to  the  abstract  of  the  votes  of  a  county  justifies  the  rejection  of  the  en- 
tire vote  of  a  county.  This  abstract  of  the  votes  cast  in  the  county  of 
Isanti  is  not  attacked  on  the  ground  that  it  is  in  any  sense  untrue.^ 
It  is  doubly  certified  to  be  true,  aside  from  the  formal  certificate  already 
referred  to.  To  this  same  abstract  is  appended  the  following  certifi- 
cates from  the  auditor  of  Isanti  County  and  the  secretary  of  state  of 
Minnesota  (page  69) : 

Btate  of  Minnesota. 

County  of  loanti : 

I,  T.  C.  White,  county  auditor  of  said  counTy,  do  hereby  certify  the  foregoing  to  be 
a  full  and  correct  copy  of  the  original  abstract  of  the  retJims  of  the  general  election 
held  in  said  county  and  State  on  the  5th  day  of  November,  A.  D.  1878,  now  on  file  in 
my  office. 

Witness  my  hand  and  the  official  seal  of  said  office,  at  Cambridge,  in  said  county^ 
this  8th  dav  of  November,  A.  D.  one  thousand  eight  hundred  and  seventy-eight. 

^  OFFICIAL  8KAL  OF  }  T.    C.    WHITE, 

)  COUNTY  AUDITOR.  ^  Couuty  Auditor. 

State  of  Minnesota, 

City  of  Saint  Paul,  ss  : 

Office  of  Secretary  of  State. 
I,  J.  S.  Irgens.  secretary  of  state  of  the  State  of  Minnesota,  do  hereby  certify  that  I 
have  carefully  compared  the  foregoing  with  the  original  thereof  on  file  in  said  office, 
and  the  same  is  a  true  copy  thereof,  and  of  the  whole  of  the  same. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  the  great  seal  of  the  State,  at 
said  Saiut  Paul,  this  11th  dav  of  Februarv.  A.  D.  1879. 

[SEAL.]  '  '  J.  S.  IRGENS, 

Secretary  of  State. 

Aside  from  this  abstract  of  votes,  as  given  on  pages  68  and  69  of  the 
record,  the  contestant  has  himself  put  in  the  record  the  highest  evi- 
dence of  the  fact  that  the  vote  of  Isanti  County  was  cast  and  returned 
as  it  was  counted.  On  page  58  of  the  record  we  find,  over  the  certifi- 
cate of  a  notary  i)ublic,  the  following : 

8th.  Contestant  offers  certified  copy  from  office  of  secretary  of  state  of  abstract  of 
votes  cast  iu  the  several  counties  in  the  third  Congressional  district  at  the  general 
election  held  on  the  .oth  day  of  November,  A.  D.  1878 ;  also  certain  certificate  of  the 
State  canvassing  board,  hereto  attached  and  marked  '•  Exhibit  8." 

By  reference  to  Exhibit  8,  thus  put  in  evidence  by  the  contestant^ 
on  page  72  of  the  record,  we  find  the  vote  of  Isanti  County  is  put  down 
as  cast — Washburn,  538:  Donnelly,  137*;  scattering,  2. 

This  abstract,  relied  upon  by  the  contestant  to  prove  the  vote  as  cast 
in  the  several  counties  of  the  Congressional  district,  is  certified  to  by 
the  governor,  secretary  of  state,  auditor  of  state,  attorney-general,  and 
the  chief  justice  of  the  State  of  Minnesota,  and  there  is  also  a  special 
certificate  attached  to  this  same  abstract  in  the  words  and  figures  fol- 
lowing: 

State  of  Minnesota, 

Office  of  Secretary  of  State : 

I.  J.  S.  Irgens,  secretary  of  state  of  the  State  of  Minnesota,  do  hereby  certify  that 
I  have  carefully  compared  the  foregoing  abstract  of  votes  for  members  of  Congress 
cast  in  the  third  Congressional  district.  State  of  Minnesota,  with  the  original  abstract 
now  ou  file  in  this  office,  and  that  the  same  is  a  true  and  correct  copy  thereof. 

Witness  mv  hand  and  the  great  seal  of  the  State  this  19th  day  of  February,  A.  D» 
1879. 

[SEAL.]  J.  S.  IRGENS, 

Secretary  of  State. 


512  DIGEST  OF  ELECTION  CASES. 

The  contestee  has  also  put  in  evidence,  properly  certified,  a  complete 
abstract  of  the  vote  of  the  district  (Kecord,  pages  343,  346). 

It  has  already  been  made  to  appear  that  the  notice  of  contestant  does 
not  directly  attack  the  vote  of  this  county.  If,  in  the  notice,  the  con- 
testant intended  to  charge  that  the  vote  was  not  cast  it  was  his  duty 
to  ofler  proof  in  support  of  the  charge.  The  record  is  silent.  If  he,  by 
his  notice,  intended  to  claim  that  the  vote  was  not  counted  he  should 
have  proved  that  claim.  If,  by  his  notice,  he  intended  to  allege  that 
the  votes  of  the  several  voting  districts  of  the  county  were  not  returned 
by  the  county  canvassing  board  it  was  his  duty  to  have  ottered  proof 
of  that.  If,  by  his  notice,  he  intended  to  deny  that  the  voce  of  this 
oounty  was  not  canvassed  on  him  rests  the  burden  of  proof  of  that. 
He  contents  himself  by  simply  claiming  that  there  is  a  failure  to  have 
a  suitable  number  of  duly  authorized  persons  sign  the  certificate  to  the 
abstract  by  way  of  attesting  it. 

The  defect  in  the  returns  from  Morrison  County,  where  the  county 
auditor  wholly  fails  to  sign  the  certificate,  and  only  one  justice  of  the 
peace  signs  it,  is  not  regarded  by  the  committee  (pages  304,  284). 

Before  leaving  this  subject  it  may  be  proper  to  go  further  into  the 
<luestion  of  the  duties  of  canvassing  officers.  Such  duties,  under  the 
statute  as  it  exists  in  the  State  of  Minnesota,  are  purely  ministerial. 
The  canvassing  board  has  only  the  right  to  cast  up  tlie  votes  as  they 
appear  from  the  returns  of  the  ofiicers  of  the  dift'erent  precincts  of  the 
county.  They  have  no  judicial  power.  In  the  case  of  the  State  vs. 
Stearas  (44  Missouri,  page  223)  the  court,  after  holding  the  duties  of 
such  canvassing  board  to  be  purely  ministerial,  say: 

When  a  ministerial  officer  leaves  his  proper  sphere  and  attempts  to  exercise  judi- 
cial functions,  he  is  exceeding  the  limits  of  the  law  and  gnilty  of  usurpation.  To  per- 
mit a  mere  ministerial  officer  arbitrarily  to  reject  returns  at  his  mere  caprice  or  pleas- 
ure is  to  infringe  or  destroy  the  rights  of  parties  without  notice  or  opportunity  to  be 
heard ;  a  thing  which  the  law  abhors  and  prohibits. 

McCrary,  in  his  work  on  Elections  (section  82),  says: 

The  true  rule  is  this :  they  must  receive  and  count  the  votes  as  shown  by  the  returns, 
And  they  cannot  go  behind  the  returns  for  any  purpose,  and  this  necessarily  implies 
that  if  a  paper  is  presented  as  a  return  and  there  is  a  question  as  to  whether  rt  is  a 
return  or  not  they  must  decide  that  question  from  what  appears  upon  the  face  of  the 
paper  itself.  Thus  in  New  York  it  has  been  held  that  the  duties  of  the  canvassers  were 
■"to  attend  at  the  proper  office  and  calculate  and  ascertain  the  whole  number  of  votes 
given  at  any  election  and  certify  the  same  to  be  a  true  canvass."  This  is  not  a  judicial 
act,  but  merely  ministerial.    They  have  no  power  to  controvert  the  votes  of  electors. 

In  a  case  in  22  Barbour,  page  77,  the  following  language  is.  used : 

They  (the  canvassers)  are  not  at  liberty  to  receive  the  vote  of  any  one  outside  of 
the  returns  themselves;  their  duty  consists  in  the  simple  matter  of  arithmetic. 

McCrary  also  says  that  the  doctrine  that  canvassing  boards  and  re- 
turn judges  are  ministerial  officers,  possessing  no  discretionary  or  judi- 
cial power,  is  settled  in  nearly  or  quite  all  of  the  States  of  the  Union. 

It  has  been  directly  settled  by  decisions  in  the  State  of  Minnesota. 
<2  Minn.,  p.  180;  10  Minn.,  p.  107  ;  18  Minn.,  p.  351.) 

See  McCrary's  Law  of  Elections,  sections  81,  82,  83,  84,  and  85. 

Even  though  the  return  must  be  set  aside,  the  election  must  stand, 
unless  the  party  who  attacks  it  shows  fraud  or  other  illegality  in  the 
election.     (McCrary's  Election  Laws,  sections  306  and  364-360.) 

It  is  hard  to  conceive  how  a  mere  ministerial  board  of  officers  can  be 
rendered  illegal  and  all  its  acts  declared  to  be  void,  simply  because  one 
person  does  not  sign  himself  as  an  attesting  witness  to  a  certificate  an- 
nexed to  an  abstract  by  such  designation  as  to  show  affirmatively  that 
he  was  a  proper  officer  to  do  so. 


DONNELLY    VS.    WASHBURN.  513 

It  may  be  proper  to  again  observe  that  the  contegtaut,  iu  liis  printed 
argument  before  the  committee,  rested  his  objection  to  the  vote  of  Isauti 
County  solely  upon  the  ground  that  the  abstract  of  the  vote,  as  certified 
on  page  (J  A  of  the  record,  was  not  duly  signed,  and  not  upon  the  ground 
that  the  abstract  was  itself  inaccurate  or  false  in  any  respect.  It  is 
true  he  claims  (which  is  not  true)  that  the  burden  rested  on  the  con- 
testee  to  go  behind  tbe  return  and  prove  the  vote.  It  is  quite  sufficient 
to  say  that  the  contestant  has  himself  conclusively  performed  that  duty 
for  the  contestee,  if  it  were  admitted  that  it  was  the  latter's  duty  to 
have  offered  any  proof  on  the  subject  before  the  vote  was  attacked.  We 
do  not  admit,  but  deny,  that  the  burden  was  at  all,  under  the  notice  of 
contestant,  thrown  upon  the  contestee  to  prove  the  vote  of  Isanti  County. 
The  contestee  has,  however,  himself  made  the  proof.  As  already  appears, 
the  notice  of  contestant  does  not  attack  the  fact  that  the  vote  was  cast. 
He  simply  undertakes  to  allege  that  it  was  not  cast,  &c.,  as  provided  by 
law,  leaving  the  fact  of  its  being  cast  to  remain  unchallenged.  The  con- 
testant, moreover,  directly  admits  in  his  brief,  in  effect,  that  the  vote 
was  cast  .as  returned  and  counted.  While  he  says  the  burden  rested 
upon  the  contestee  to  prove  this  fact,  and  that  the  contestee  declined  to 
do  so,  he  does  say,  quoting  his  exact  language,  "  Had  he  done  so  the 
contestant  Avas  prepared  to  show  the  grossest  irregularities  in  the  con- 
duct of  the  election  in  said  county."  He  thus  admits  that  the  vote  was 
cast,  but  seems  to  think  that  when  contestee  offered  proof  of  the  fact, 
which  he  himself  has  already  proved  (as  well  as  the  contestee),  that  it 
would  open  the  door  for  him  to  offer  proof  of  the  grossest  irregularities 
in  tiie  conduct  of  the  election  in  that  county,  notwithstanding  the  fact 
that  there  is  not  a  word  in  his  notice  of  contest  which  indicated  any 
kind  of  irregularities  in  the  election  in  that  county,  but  he  failed  to  do 
80.  This  county  gave  to  the  contestee,  Mr.  Washburn,  a  majority  of 
401,  nearly  200  in  excess  of  the  majority  which  certain  members  of  the 
committee  find  was  the  majoritj'  of  the  contestant  after  rejecting  all  the 
votes  as  indicated  in  its  views.  It  is  thus  made  to  appear  that,  on 
what  could  not  be  dignified  as  a  technicality  of  the  law,  it  is  proposed 
to  unseat  the  sitting  member,  and  to  seat  a  man  who  was  not,  as  is  ad- 
mitted by  himself  in  his  printed  argument,  elected. 

It  should  be  noted,  in  conclusion,  on  this  point,  that  the  law  makes  it 
the  duty  of  the  committee  or  the  House  to  send  for  and  tabulate  the 
original  precinct  returns  if  the  true  vote  cannot  be  ascertained  from 
the  return.     (McCrary,  &c.,  section  345.) 

POLK  AND  KITTSON  COUNTIES. 

A  portion  of  the  committee  propose  to  throw  out  the  entire  vote  of 
Polk  and  Kittson  Counties.  The  returned  vote  in  Polk  County  was  659 
for  Washburn,  180  for  Donnelly  ;  and  in  Kittson  County  there  were  183 
votes  for  Washburn  and  2  for  Donnelly,  ^^'e  have  already  considered 
the  objection  to  the  vote  cast  in  Crookston  precinct,  Polk  County, 
and  to  the  vote  cast  in  Tamarack  and  Two  Rivers  precincts,  in 
Kittson  County,  the  only  voting  precincts  in  Kittson  County.  To 
reject  the  votes  cast  for  Washburn  in  the  three  precincts  in  the  coun- 
ties named  would  still  leave  nim  43G  votes,  which  votes  certain  mem- 
bers of  the  committee  i)roi)Ose  to  reject,  solely  upon  the  ground  that 
the  votes  of  these  two  counties  were  canvassed  and  returned  together 
by  the  canvassing  board  of  Polk  County  (page  64).  The  abstract. of 
H.  Mis.  58 33 


514  DIGEST    OF    ELECTION    CASES. 

tjie  vote,  a«  it  appears  in  the  record,  does  show  that  the  vote  of  these 
two  counties  was  so  canvassed  and  returned.  It  is  conceded  on  every 
hand  that  Kittson  County  was,  at  the  time  of  the  election  in  Novem- 
ber, 1878,  an  unorganized  county.  It  was  attached  to  the  county  of 
Polk,  an  organized  county,  for  election  purposes,  in  accordance  with 
the  law  of  the  State  of  Minnesota,  and  the  return  thus  made  is  in  exact 
accord  with  the  requirements  of  the  statute  of  the  State.  We  give  here 
in  full  the  section  of  the  statute  bearing  upon  that  subject.  It  is  as 
follows : 

After  the  canvass  is  thus  completed,  the  judges  of  election,  before  they  disperse, 
shall  inclose  the  said  returns  in  a  cover,  seal  the  same,  and  indorse  thereon  the  fol- 
lowing words,  viz:  "Election  returns  of  the  election  district  of ,  in  the  county 

of ,"  and  direct  the  same  to  the  county  auditor  of  their  county  ;  and  the  said 

returns  shall,  within  five  days  of  the  day  of  election,  be  conveyed  by  one  of  said 
judges,  to  be  chosen  by  lot,  if  not  otherwise  agreed  upon,  and  delivered  to  the  said 
county  auditor  at  his  oflBce:  Provided.  That  the  returns  of  election  iu  unorganized 
counties  shall  be  made  to  the  auditor  of  the  county  to  which  they  are  attached  for 
elective  purposes,  and  the  votes  shall  be  canvassed,  and  certificates  of  election  issued 
to  the  persons  elected,  in  the  manner  provided  in  this  chapter  for  canvassing  votes 
and  issuing  certificates  of  election  in  organized  counties.    (Bissell's  Statutes,  page  171.) 

The  abstract  and  certificate  thereto  and  the  attestation  thereof  are 
in  precise  accordance  with  the  requirements  of  the  law  of  the  State  of 
Minnesota.  It  is  not  true  that  the  vote  of  the  counties  of  Polk  and 
Kittson  is  lumped  together  in  such  abstract.  The  abstract  itself,  as 
well  as  the  proof  in  the  case,  shows  that  there  were  but  two  precincts 
in  the  county  of  Kittson,  and  the  vote  of  these  two  precincts  is  stated  iu 
the  abstract  sei)arately.  There  is  no  difficulty  about  separating  this 
vote  on  a  mere  inspection  of  the  abstract,  but  if  it  were  true  that  the 
vote  of  the  several  precincts  could  not  be  distinguished,  it  would  not 
be  an  objection,  for  still  the  abstract  would  be  in  accordance  with  the 
law  of  the  State.  It  is  expressly  admitted  by  the  contestant  iu  his  ar- 
gument, and  all  the  way  through  the  case,  that  the  majority  for  Wash- 
burn, as  returned  in  the  county  of  Polk,  was  497,  and  also  that  the  ma- 
jority as  returned  for  Washburn  in  the  county  of  Kittson  was  181.  On 
what  theory  members  of  the  committee  are  now  able  to  say  that  the 
vote  of  these  two  counties  is  so  intermingled  as  to  be  indistinguishable 
we  have  not  been  able  to  discover.  In  the  contestant's  printed  brief, 
under  the  head  of  "  Polk  County,''  iu  speaking  of  the  contestee's  ma- 
jority, he  expressly  stat<'s  that  497  of  his  majority  was  received  from 
Polk  County  alone  (printed  brief,  page  4).  The  witnesses,  in  speaking  of 
these  two  counties  and  giving  the  votes  by  precincts,  also  mention  the 
vote,  as  indicated  in  the  abstract  referred  to. 

The  contestant  has  put  into  the  record  a  complete  abstract  of  the 
votes  cast  in  the  several  counties  in  the  State  of  Minnesota,  in  which  the 
vote  of  Polk  County  is  given,  Washburn  659,  Donnelly  180;  aud  Kittson 
County,  Washburn  183,  Donnelly  2  (Record,  pages  58,  72).  The  same 
and  a  similar  abstract  has  also  been  put  iu  evidence  by  the  contestee, 
which  shows  the  vote  as  stated  (Record,  pages  343,  340).  This  abstract 
of  the  entire  vote  cast  in  the  third  district  of  the  State  of  Minnesota  in 
itself  proves  the  vote  to  have  been  cast  lor  the  contestant  and  coutestee 
as  given  in  the  abstract  found  on  page  64  of  the  record.  It  is  proper 
to  observe  that  there  is  nothing  in  the  record  to  show  that  other  returns 
of  the  vote  cast  in  the  county  of  Polk  and  the  county  of  Kittson  may  not 
have  been  made  separately.  And  it  is  important  to  say  that  in  the  con- 
testant's notice  nothing  is  said  by  way  of  objection  to  the  return  made 
of  the  vote  cast  in  either  of  these  counties ;  but,  on  the  contrary,  the 
contestant,  in  paragraph  7  of  his  notice,  expressly  admits  that  the  votes 


DONNELLY    VS.    WASHBURN.  515 

of  these  two  counties  were  cast,  returned,  counted,  and  caurassed  with- 
out attacking  the  reguhirit.v  of  the  return  or  the  counting'  or  the  can- 
vassing of  such  vote.  He  does  say  in  his  notice  that  "the  officers  re- 
ceiving, counting,  and  canvassing  said  alleged  votes  were  not  officers  of 
said  election  districts  or  said  counties,"  thus  expressly  admitting  that 
officers  did  receive,  count,  and  canvass  the  votes.  There  is,  however, 
no  objection  made  to  appear  by  the  evidence  that  the  officers  were  not 
the  proper  "officers  to  receive,  count,  and  canvass  the  votes.  We  are 
cited  to  the  testimony  of  one  witness,  John  N.  Gilman,  to  show  that 
this  county  was  not  attached  to  some  other  organized  county  for  election 
purposes. 

But  the  proof  of  this  witness  is,  that  as  a  lawyer  he  did  not  know 
that  it  was  legal  for  votes  to  be  cast  in  unorganized  counties,  and  he 
had  never  seen  a  law  authorizing  certain  unorganized  counties  to  be 
attached  to  organized  counties  for  election  purposes  (page  41).  The 
contestant  claims  in  the  face  of  the  record  and  the  official  returns  from 
Polk  County  that  he  has  proved  that  one  precinct,  to  wit,  Farley,  which 
gave  Washburn  9  votes  and  Donnelly  24  votes,  was  not,  in  fact,  in 
Polk  County,  as  appears  by  the  abstract.  If  his  testimony  could  be 
relied  upon,  and  his  objection  was  good,  and  contestant's  notice  justi- 
fied the  proof,  which  it  does  not,  the  coutestee  might  be  quite  willing 
to  have  the  vote  of  this  ])recinct  rejected.  There  is  no  attempt  to  offer 
any  proof  to  show  that  any  other  precinct  canvassed  and  returned  in 
Polk  or  Kittson  County  was  not  in  the  counties  indicated  in  the  ab- 
stract. But  the  sole  witness  relied  upon  to  prove  that  Farley  precinct 
was  not  in  Polk  County  has  no  sort  of  knowledge  on  the  subject.  The 
first  question  asked  him  by  the  contestant  (page  22C)  was  as  follows: 

Q.  Do  you  know  whether  the  polling-place  at  Farley  is  in  this  [referring  to  Polk 
County]  or  Kittson  County  ? 

His  answer  was — 

A.  I  was  told  that  the  polls  of  Farley  was  not  in  Polk  County.  No,  sir ;  nothing 
else. 

His  testimony  on  cross-examination  is  as  follows: 

Q.  Do  you  know  where  the  north  line  of  the  county  lies  as  regards  Farley  T — A.  I 
could  not  tell  yon  exactly  where  it  is,  but  I  thought  it  was  outside  of  the  line. 

This  is  too  shadowy  to  found  a  judgment  upon  to  overthrow  the  official 
returns  and  canvass  of  a  precinct  as  made  by  officers  who  are  to  be 
presumed  to  have  done  their  duty  as  precinct,  county,  and  State  officers. 
The  testimony  itself  is  not  competent,  because  it  is  purely  hearsay,  and 
shows  upon  its  face  that  the  witness  is  talking  from  mere  rumor.  It  is 
a  well-known  fact  that  for  many  years  the  vote  in  these  two  counties 
has  been  counted,  canvassed,  and  returned  together  for  all  State  officers, 
as  well  as  for  electors  and  members  of  Congress. 

In  the  absence  of  proof  it  should  be  conclusively  presumed  that  the 
election  officers  in  election  districts  or  precincts,  and  the  county  canvass- 
ing board  of  Polk  County,  and  the  State  canvassing  board,  composed 
of  the  governor  and  the  secretary  of  state,  who  are  required  to  act  in  the 
presence  of  the  auditor  of  state,  attorney-general,  and  one  or  more  judges 
of  the  supreme  court,  liave  done  their  duty.  This  is  so  clear,  that  it  can 
hardly  be  imagined  that  further  objection  would  be  made  to  counting 
436  votes  for  Washburn  and  135  votes  for  Donnelly,  cast  in  the  county 
of  Polk,  as  to  which  tliere  is  no  other  objection  than  the  tact  that  they 
were  canvassed  with  the  votes  from  Kittson  County.  If  the  return 
should  be  defective  as  to  Kittson  County  it  is  wholly  unobjectionable  as 
to  Polk  County.     There  is  absolutely  no  attempt  by  contestant's  notice 


516  DIGEST    OF    ELECTION    CASfiS. 

or  iu  his  argument  to  deprive  Mr.  Washburu  of  a  majority  of  301  votes 
in  the  county  of  Polk,  and  it  is  difficult  to  properly  characterize  the 
•attempt  to  do  so  now. 

In  conclusion,  it  may  be  proper  to  say  on  the  subject  of  the  vote  of  the 
counties  of  Polk  and  Kittson  that,  notwithstanding  the  fact  that  ex- 
tended oral  arguments  were  made  by  the  contestant,  no  objection  was 
made  throughout  them  to  counting  the  vote  of  these  two  counties  on 
the  ground  that  it  was  not  properly  canvassed  and  returned. 

The  returned  majority  for  W.D.  Washburn  is  3,013.  If  the  views  of 
the  members  of  the  committee  who  are  in  favor  of  unseating  him  should 
be  adopted,  then  there  should  be  added  to  this  majority  the  uureturned 
votes  cast  for  him  from  the  counties  of  Stearns  (144)  and  Morrison  (68), 
212,  which  would  increase  his  majority  to  3,225.  On  this  theory  of  the 
case  there  should  be  deducted,  on  account  of  unreturned  votes  claimed 
to  have  been  cast  for  Donnelly  in  the  counties  of  Stearns  (396),  Morri- 
son (165),  and  Douglas  (61),  a  total  of  622  votes,  which  would  reduce 
Mr.  Washburn's  majority  to  2,603. 

The  entire  majority  for  Mr.  Washburn  in  Crookston  (168),  Polk 
County,  and  in  Tamarack  and  Two  Rivers  precinct  (181 ),  (his  whole  vote 
in  Kittson  County),  and  all  the  alleged  bribed  votes  (22),  as  found  by  a 
portion  of  the  committee,  aggregate  371  votes,  which,  if  deducted  from 
the  number  ascertained  as  above,  would  still  leave  the  sitting  member 
with  a  majority  of  2,232,  as  to  which  no  bribery  is  pretended,  and  as  to 
no  portion  of  which  can  there  be  any  reasonable  or  possible  pretense 
for  a  valid  or  legal  objection. 

In  the  light  of  the  law,  and  giving  due  weight  to  all  competent  testi- 
mony in  the  case,  not  even  a  technical  ground  cau  be  found  for  rejecting 
any  part  of  a  majority  thus  found. 

The  members  of  the  committee  who  concur  in  the  annexed  resolution 
declaring  that  W.  D.  Washburn  was  duly  elected,  &c.,  do  not  agree  that 
his  true  majority  is  only  2,232. 

Ten  members  (two-thirds)  of  the  whole  committee  concur  in  holding 
that  Ignatius  Donnelly  was  not  elected,  and  that  he  is  not  entitled  to  a 
seat  in  the  House.  It  seems  to  the  members  of  the  committee  who, 
without  qualification,  sign  this  report  that  it  is  a  gross  inconsistency  to 
not  find  as  a  logical  consequence  that  W.  D.  Washburn  was  duly  elected 
to  his  seat  iii'the  House  of  Kepresentatives. 

A  resolution  declaring  that  Ignatius  Donnelly  is  not  entitled  to  a  seat 
in  the  House  of  Representatives  is  reported  in  accordance  with  the  in- 
structions of  the  committee. 

The  members  of  the  committee  who  sign  this  report  concur  generally 
in  the  views  therein  expressed  and  in  recommeuding  for  adoption  by 
the  House  of  the  following  resolutions : 

Fesolved,  That  William  D.  W^ashburn  is  entitled  to  retain  his  seat  as 
a  member  of  the  Forty-sixth  Congress  of  the  United  States  as  Repre- 
sentative of  the  third  Congressional  district  of  the  State  of  Minnesota. 

Resolved,  That  Ignatius  Donnelly  is  not  entitled  to  a  seat  as  a  mem- 
ber of  the  Forty- sixth  Congress  as  Representative  from  the  third  Con- 
gressional district  of  the  State  of  Minnesota. 

J.  WARREN  KEIFER. 
E.  OVERTON,  Jr. 
W.  H.  CALKINS. 
JOHN  H.  CAMP. 
W.  A.  FIELD. 


LIST  OF  CASES. 


Page. 

Ackleii  V8.  DarraU,  third  CongressioDal  district  of  Louisiana,  Forty-fifth  Con- 
gress        124 

Bisbee  V8.  Hull,  second  Congressional  district  of  Florida,  Forty-sixth  Congress.      315 

Boynton  vs.  Loring,  sixth  Congressional  district  of  Massachusetts,  Forty-sixth 

Congress 346 

Bradley  vs.  Slenions,  second  Congressional  district  of  Arkansas,   Forty-sixth 

Congress 296 

Ciirtin  vs.  Yocum,  twentieth  Congressional  district  of  Pennsylvania,  Forty-sixth 

Congress 416 

Dean  vs.  Field,  third  Congressional  district  of  Massachusetts,  Forty-fifth  Con- 
gress         190 

Donnelly  vs.  Washburn,  third  Congressional  district  of  Minnesota,  Forty-sixth 
Congress 439 

Duiiy  vs.  Mason,  twenty-fourth  Congressional  district  of  New  York,  Forty-sixth 
Congress 361 

Fiuley  rs.  Bisbee,  second  Congressional  district  of  Florida,  Forty-fifth  Con- 
gress           74 

Frost  rs.  Metcalfe,  third  Congressional  district  of  Missouri,  Forty-fifth  Con- 
gress       289 

Herbert  rs.  Acklen,  third  Congressional  district  of  Louisiana,  Forty-sixth  Con- 
fess        345 

Holuies,  J.  C,  claimant,  eighth  Congressional  district  of  Iowa,  Forty-sixth  Con- 
gress         322 

Iowa  election  case,  eighth  Congressional  district  of  Iowa,  Forty-sixth  Congress.       322 

Iowa  election  case,  ninth  Congressional  district  of  Iowa,  Forty-sixth  Congress.       322 

McUabe  vs.  Orth,  ninth  Congressional  district  of  Indiana,  Forty-sixth  Con- 
gress         320 

Merchant  rs.  Acklen,  third  Congressional  district  of  Louisiana,  Forty-sixth  Con- 
gress         345 

O'Hara  r«.  Kitchin,  second  Congressional  district  of  North  Carolina,  Forty- 
sixth  Congress 378 

Patterson  rs.  Belford,  State  of  Colorado,  Forty- fifth  Congress 52 

Richardson  vs.  Rainey,  first  Congressional  district  of  South  Carolina,  Forty-fifth 
Congress ' 224 

Wigginton  rs.  Pacheco,  fourth  Congressional  district  of  California,  Forty-fifth 

Congress 5 

Wilson,  J.  J.,  claimant,  ninth  Congressional  district  of  Iowa,  Forty-sixth  Con- 
gress       322 

Yeatt»  rs.  Martin,  first  Congressional  district  of  North  Carolina,  Forty-sixth 
Congress 384 


^ 


INDEX. 


« 

A. 

Page. 
Ackleu,  Joseph  H.,  contestee,  third  district  of  Louisiana,  Forty-sixth  Congress. .  345 
Acklen,  Joseph  H.,  va.  Chester  B.  Darrall,  contested  election,  Forty-fifth  Con- 
gress    124 

Acklen  r«.  Darrall,  majority  report .• 125 

minority  report 183 

views  of  Hiram  Price 154 

resolutions  adopted 154 

Arkansas — Bradley  rs.  Slemons,  third  Congressional  district,  Forty-sixth  Con- 
gress    296 

Armlield,  Hon.  R.  F.,  North  Carolina,  member  Committee  on  Elections,  Forty- 
sixth  Congress 295 

B. 

Belford,  James  B.,  contestee.  State  of  Colorado,  Forty-fifth  Congress 52 

Beltzhoover,  Hon.  F.  E.,  Pennsylvania,  member  Committee  on  Elections,  Forty- 
sixth  Congress 295 

Bisbee,  Horatio,  jr.,  contestee,  second  district  of  Florida,  Forty-fifth  Congress.  74 
Bisbee,  Horatio,  jr.,  rs.  Noble  A.  Hull,  contested  election,  Forty-sixth  Con- 
gress   315  • 

Bisbee  vs.  Hull,  report  of  committee 315 

resolutions  adopted 319 

Boynton,  E.  Moody,  r«.  George  B.  Loring,  contested  election.  Forty-sixth  Con- 
gress    346 

Boynton  va.  Loring,  majority  report 346 

minority  report 353 

resolutions  adopted 352 

Bradley,  John  M.,  vs.  William  F.  Slemons,  contested  election,  Forty-sixth  Con- 
gress    296 

Bradley  r«.  Slemons,  majority  report.....   ... ^ 296 

minority  report 313 

resolutions  adopted 313 

C. 

California — VViggintou  r«.  Pacheco,  fourth  Congressional  district,    contested 

election,  Forty-fifth  Congress 5 

Calkins,  Hon.  W.  H.,  Indiana,  member  Committee  on  Elections,  Forty -sixth 

Congress 295 

Camp,  Hon.  J.  H.,  New  York,  member  Committee  on  Elections,  Forty -sixth 

Congress 295 

Candler,  Hon.  W.  A.,  Georgia,  member  Committee  on  Elections,  Forty-fifth 

Congress 3 

Clark,  Hon.  A.  A.,  New  Jersey,  member  Committee  on  Elections,  Forty-sixth 

Congress 295 

Cobb,  Hon.  T.  R.,  Indiana,  member  Committee  on  Elections,  Forty-fifth  Con- 
gress   3 

Colerick,  Hon.  W.  G.,  Indiana,  member  Committee  on  Elections,  Forty-sixth 

Congress 295 

Colorado — Patterson  ra.  Belford,  contested  election.  Forty-fifth  Congress 52 

Committee  on  Elections,  members  of,  Forty -fifth  Congress 3 

Forty-sixth  Congress 295 

Curtin,  Andrew  G.,  va.  Seth  H.  Yocnm,  contested  election.  Forty-sixth  Congress.  TTSl 

Curtin  ra.  Yociini,  majority  report 4'.io|j 

minority  report -416^^ 

resolutions  adopted 424 


20  INDEX. 

Page. 

Darrall,  Chester  B.,  oontestee,  third  district  of  Louisiana,  Forty-fifth  Congress.  124 

Dean,  Benjamin,  vs.  W.  A.  Field,  contested  election,  Forty-fifth  Congress 190 

Dean  vs.  Field,  majority  report^. 190 

minority  report*. 213 

resolutions  adopted 213 

Donnelly,  Ignatius,  vs.  W.  D.  Washburn,  contested  election,  Forty-sixth  Con- 
gress    439 

Donnelly  vs.  Washburn,  majority  report , .? 439 

minority  report 470 

note  by  compiler 439 

Duffy,  Sebastian,  vs.  Joseph  Mason,  contested  election,  Forty-sixth  Congress  . .  361 

Duffy  vs.  Mason,  report  of  committee 361 

resolutions  adopted 377 

E. 

Elections,  Committee  on,  members  of,  Forty-fifth  Congress    3 

Forty-sixth  Congress 295 

Ellis,  Hon.  E.  J.,  Louisiana,  member  Committee  on  Elections,  Forty-fifth  Con- 
gress    3 

Etter,  S.  M.,  clerk  Committee  on  Elections,  Forty-sixth  Congress 295 

F. 

Field,  Hon.  W.  A.,  Massachusetts,  member  Committee  on  Elections,  Forty-sixth 

Congress 295 

Field,  Walbridge  A.,  contestee,  third  district  of  Massachusetts,  Forty-fifth  Con- 
gress    190 

Finley,  Jesse  J.,  Jr.,  vs.  Horatio  Bisbee,  jr.,  contested  election,  Forty-fifth  Con- 
gress   74 

Finley  r«.  Bisbee,  majority  report 74 

minority  report  ., 106 

resolutions  adopted 106 

Florida — Bisbee  vs.  Hull,  second  district,  contested  election,  Forty-sixth  Con- 
gress    315 

Florida — Finley  vs.  Bisbee,  second  district,  contested  election,  Forty-fifth  Con- 
gress    <4 

Frost,  R.  Graham,  vs.  Lyue  S.Metcalfe,  contested  election.  Forty-fifth  Congress.  289 

Frcst  vs.  Metcalfe,  report  of  committee 289 

resolutions  adopted 293 

H. 

Harris,  Hon.  J.  T.,  Virginia,  member  Committee  on  Elections  (chairman). 

Forty-fifth  Congress 3 

Herbert,  Robert  0.,  vs.  J.  H.  Acklen,  contested  elected,  Forty-sixth  Congress. .  345 

Herbert  vs.  Acklen,  report  of  committee 345 

resolutions  adopted :}45 

Hiscock,  Hon.  Frank,  New  York,  member  Committee  on  Elections,  Forty-fifth 

Congress 3 

Holmes,  J.  C,  claimant,  eighth  district  of  Iowa,  Forty-sixth  Congress 322 

majority  report 322 

minority  report 341 

views  of  Mr.  Beltzhoover •. 340 

resolutions  adopted 339 

Hull,  Noble  A.,  contestee,  second  district  of  Florida,  Forty-sixth  Congress 315 

1. 

Iowa — J.  C.  Holmes,  claimant,  eighth  district.  Forty-sixth  Congress 322 

J.  J.  Wilson,  claimant,  ninth  district.  Forty-sixth  Congress 322 

Indiana — McCabe  vs.  Orth,  ninth  district,  contested  election,  Forty-sixth  Con- 
gress   320 

K. 

Keifer,  Hon.  J.  W.,  Ohio,  member  Committee  on  Elections,  Forty-sixth  Congress  295 
Kitchin,  W.  H.,  contestee,  second  district  of  North  Carolina,  Forty-sixth  Con- 
gress   \ 378 


1 


INDEX.  521 

L. 

Page- 

Loring,  George  B.,  contestee,  sixth  diatrict  of  Mfwsachnsetts,  Forty-sixth  Con- 
gress        346 

Louisiana — ^Acklen  v$.  DarraU,  third  district,  contested  election,  Forty-fifth 

Congress 124 

Louisiana — Herbert  V8.  Acklen,  third  district,  contested  election,  Forty-sixth 
Congress 345 

Louisiana — Merchant  vs.  Acklen,  third^district,  contested  election,  Forty-«ixth 
Congress 345 

M. 

Manning,  Hon. 'Van  H.,  Mississippi,  member  Committee  on  Elections,  Forty- 
sixth  Congress 295 

Martin,  Joseph  J.,  contestee,  first  district  of  North  Carolina,  Forty-sixth  Con- 
gress    384 

Mason,  Joseph,  contestee,  twenty-fourth  district  of  New  York,  Forty-sixth 

Cougress 361 

Massachusetts — Boynton  vs.  Loring,  sixth  district,  contested  election.  Forty- 
sixth  Congress 346 

Massachusetts — Dean  V8.  Field,  third  district,  contested  election,  Forty-fifth 

Congress 190 

McCabe,  James,  vs.  Godlove  S.  Orth,  contested  election.  Forty-sixth  Congress..  320 

McCabe  ve.  Orth,  report  of  committee 320 

resolution  adopted 321 

Merchant,  W.  B.,  vs.  J.  H.  Acklen,  contested  election,  Forty-sixth  Congress..  345 

Merchant  vs.  Acklen,  report  of  committee 345 

resolution  adopted 345 

Metcalfe,  Lyne  S.,  contestee,  third  district  of  Missouri,  Forty-fifth  Congress..  289 

Minnesota — Donnelly  vs.  Washburn,  third  district,  contested  election.  Forty- 
sixth  Congress 439 

Missouri — Frost  vs.  Metcalfe,  third  district,  contested  election,  Forty -fifth  Con- 
gress   '. 289 

N. 

New  York — Dutfy  r«.  Mason,  twenty-fourth  district,  contested  election,  Forty- 
sixth  Congress 361 

North  Carolina — O'Hara  r«.  Kitchin,  second  district,  contested  election.  Forty- 
sixth  Congress , 378 

North  Carolina — Yeates  r«.  Martin,  first  district,  contested  election.  Forty-sixth 
Congress ". 384 

O. 

O'Hara,  James  E.,  vs.  W.  H.  Kitchin,  contested  election,  Forty-sixth  Congress.  378 

O'Hara  vs.  Kitchin,  report  of  committee 378^ 

resolutions  adopted 'SSS'"^ 

Orth,  Godlove  S..  contestee,  ninth  district  of  Indiana,  Forty-sixth  Congress 320 

Overton,  Hon.  E.,  jr.,  Pennsylvania,  member  Committee  on  Elections,  Forty- 
sixth  Congress - 295 

P. 

Pacheco,  Romualdo,  contestee,  fourth  district  of  California,  Forty-fifth  Con- 
gress   5 

Patterson,  Thomas  M.,  vs.  James  B.  Belford,  contested  election,  Forty-fifth  Con- 
gress    .52 

Patterson  vs.  Belford,  majority  report 52 

minority  report 60 

resolution  a«lopte<l 59 

Pennsylvania — Curtin  vs.  Yocum,  twentieth  district,  contested  election.  Forty- 
sixth  Congress 416 

Phister,  Hon.  Elijah  C,  Kentucky,  member  Committee  on  Elections,  Forty-sixth 

Congress 295 

Price,  Hon.  Hiram,  Iowa,  member  Committee  on  Elections,  Forty-fifth  Congress.  3 

H.  Mis  58 34 


_> 


INDEX. 
E. 


Page. 
Rainey,  Joseph  H.,  contestee,  first  district  of  South  Carolina,  Forty-fifth  Con-  ' 

gress 224 

Eichardson,  John  S.,  V8.  Joseph  H.  Eainey,  contested  election,  Forty-fifth  Con- 
gress    224 

Eichardson  vs.  Ramey,  majority  report 273 

minority  report 224 

note - 224 

S. 

Sawyer,  Hon.  S.  L.,  Missouri,  member  Committee  on  Elections,  Forty-sixth 

Congress 295 

Slenions,  William  F.,  contestee,  second  district  of  Arkansas,  Forty-sixth  Con- 
gress         296 

Smith,  J.  M.,  clerk  Committee  on  Elections,  Forty-fifth  Congress 3 

South  Carolina — Richardson  vs.  Raiuey,  first  district.  Forty-fifth  Congress 224 

Speer,  Hon.  Emory,   Georgia,  member  Committee  on  Elections,  Forty-sixth 

Congress 295 

Springer,  Hon.  W.  M.,  Illinois,  member  Committee  on  Elections,  Forty-fifth 
Congress 3 

Springer,  Hon.  W.  M.,  Illinois,  member  Committee  on  Elections  (chairman), 
Forty-sixth  Congress 295 

T. 

Thoruburgh,  Hon.  J.  N.,  Tennessee,  member  Committee  on  Elections,  Forty- 
fifth  Congress 3 

Turney,  Hon,  Jacob,  Pennsylvania,  member  Committee  on  Elections,  Forty- 
fifth  Congress 3 

W. 

» 
Wait,  Hon.  J.  T.,  Connecticut,  member  Committee  on  Elec^j^ons,  Forty-fifth  Con- 
gress    3 

Washburn,  William  D.,  contestee,  third  district  of  Minnesota,  Forty-sixth  Con- 
gress    439 

Weaver,  Hon.  J.  B.,  Iowa,  member  Committee  on  Elections,  Forty-sixth  Con- 
gress    295 

"Wigginton,  Peter  D.,  vs.  Romualdo  Pacheco,  contested  election,  Forty-fifth  Con- 
gress      .       5 

Wigginton  vs.  Pacheco,  majority  report 5 

minority  report 24 

views  of  Mr.  Springer 19 

resolutions  adopted 18 

Williams,  Hon.  J.  N.,  Alabama,  member  Committee  on  Elections,  Forty-fifth 

Congress 3 

Wilson,  John  J. ,  claimant,  ninth  district  of  Iowa,  Forty-sixth  Congress . . .- 322 . 

majority  report .322 

minority  report 341- 

views  of  Mr.  Beltzhoover 340 

resolutions  adopted 339 

Y. 

Yeates,  Jesse  J.,  f«.  Joseph  J.  Martin,  contested  election, Forty-sixtTi  Congress. .  384 

Yeates  vs  Martin,  majority  report 384 

minority  report 391 

resolutions  adopted 390 

Yocum,  Seth  H.,  contestee,  twentieth  district  of  Pennsylvania,  Forty-sixth  Con- 
gress    416 

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